Barry v. Lewis — 11 N.Y. St. Rep. 307

Majority

p. 307

William Barry et al., Resp’ts, v. Benjamin Lewis, App’lt.

(Supreme Court, General Term, First Department,

Filed October 27, 1887.)

Headnote

Action—On promissory notes—Pleading—Effect of admission at trial—Evidence.

In an action on a promissory note, at the commencement of the trial the defendant’s counsel admitted everything, the making and delivery of the note and all except the ownership; and tile admission evidently referring to the allegations of the complaint, was an admission of evejy allegation

p. 308

therein contained, except that of ownership. Held, that as the complaint contained no allegation that the note was made and delivered for a valuable consideration, the admission, broad as it was, did not preclude the defendant from showing that the note, although made and delivered by him, never had any legal inception, because it was not supported by any consideration.

Appeal from a judgment entered after a trial at circuit, and from an order denying a motion for a new trial.

H. C. Place, of counsel, for app’lt; Geo. W. Delano, of counsel, for resp’ts.

Van Brunt, P. J.

—This action was brought to recover $1,000 upon a promissory note made by the defendant and delivered to the plaintiffs whereby he promised to pay $500 apiece to the plaintiffs.

The defendant set up, by way of answer, no consideration; that it was understood that the defendant was not to pay it, that the plaintiffs and defendant were co-partners; that plaintiffs were indebted to the defendant to an amount much greater than the note, and that the plaintiffs were not the owners and holders of the note.

At the commencement of the trial the defendant’s counsel admitted everything, the making and delivery of the note and all except the ownership.

This admission evidently referred to the allegations of the complaint, and was an admission of every allegation therein contained except that of ownership.

It is to be observed that the complaint contains no allegation that the note was made and delivered for a valuable consideration, and, therefore, the admission, broad as it was, did not preclude the defendant from showing that the note, although made and delivered by him, never had any legal inception, because it was not supported by any consideration. This, however, by the rulings of the learned judge, he was precluded from doing, and such ruling being duly excepted to, error was committed, which requires a reversal of the judgment and the ordering of a new trial, with costs of this appeal to the appellant to abide event.

Daniels and Bartlett, JJ., concur.