Hawxhurst v. Ritch — 24 N.Y. St. Rep. 729

Majority

p. 729

Elbert W. Hawxhurst, Resp’t, v. Thomas J. Ritch, Jr., as Administrator, etc., App’lt.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

1. Promissory note—Consideration—Burden op proof.

This is a proceeding under the statute to establish a claim, based on a note held by plaintiff against defendant as administrator of his father’s estate. The note states that it was given for value received. The defense is want of consideration. Held, that the burden of proof is on the administrator to show that it was given for nothing.

% Same—What sufficient consideration.

A note given for an amount ascertained to be due the payee by reason of the maker selling personal property belonging to the former without notice and without permission is based upon sufficient consideration.

Appeal from a judgment entered on a referee’s report, and from an order granting costs.

This is a proceeding under the statute to establish a claim held by plaintiff against the administrator of his father’s estate. The claim is based on a note made by defendant’s testator. The defense was that the note was without consideration.

E. G. Bewail, for resp’t; George C. Brainerd, for app’lt.

The signature of the deceased to the note presumably made out a consideration for the paper.

It stated that it was given for value received, and that was sufficient to throw upon the administrator the burden of proving that it was given for nothing.

The cross-examination of the claimant makes out an abundant consideration. The deceased had a title to a piece of land in his own name, which really belonged to himself and the claimant together. The plaintiff had personal property on the farm, and the deceased sold the farm without notice to him, and thereby occasioned loss on the sale of the

p. 730

plaintiff’s personal property by reason of its forced sale out of season.

The deceased and the claimant went over the items of loss together, “and they agreed upon the amount due.” The amount was $550, out of a claim of $852.35. The note was given for the sum of $550. The note rests upon as sure a foundation as if the father to give $550 for the right to sell a farm occupied by his son, and in which he was a half owner, without a formal title at a time when the sale would be beneficial to the father, and injurious to the son.' The costs were properly ordered under the case of Denise v. Denise, 110 N. Y., 562 ; 18 N. Y. State Rep., 873.

The judgment should, therefore, be affirmed, with costs.

All concur.