Rice v. Grange — 39 N.Y. St. Rep. 163

Majority

p. 163

Henry A. Rice, Assignee, etc., Resp't, v. James Grange, App’lt.

(Supreme Court, General Term, First Department,

Filed June 12, 1891.)

Headnote

Bills and notes—Consideration—Exchange oe notes.

Defendant made his note to Chase & Co., plaintiff’s assignor, and received in return a note of the same amount and date made hy a third party and endorsed by Chase & Co. Held, that the latter constituted as much of a consideration as though the money had been paid in cash, and the fact that the note was not paid when due, in no way affected the title to defendant’s note.

p. 164

Appeal from judgment entered on verdict directed by the court, "and from order denying motion for new trial.

Drew & Page, for app’lt; A. B. Cruikshank, for resp’t

—The uncontradicted facts appearing upon, the trial were that in 1889 one Earl B. Chase was doing business in the city of New York, under the firm name of Earl B. Chase & Co., and in December, 1889, one Pollard gave to the defendant a note of a firm of Hawkins & Co., endorsed by Chase & Co., and received in exchange therefor the defendant’s note for the samo amount, Pollard in this transaction acting as a broker for E. B. Chase & Co.

When these notes became due neither of them were paid, and in July, 1890, E. B. Chase & Co. made an assignment for the-benefit of creditors to the plaintiff, who thereupon brought this action to recover upon the note given by the defendant to Chase & Co. The answer alleged a failure of consideration as to the note-sued upon, because of default in payment of said note of Hawkins & Co., endorsed by Chase & Co.

At the end of'the testimony the defendant moved to amend his-answer, by setting up a counterclaim, which motion was denied. No exception, however, was taken to the ruling of the court, and no order was entered.

The defendant moved to submit the case to the jury, which was-denied and excepted to, and a verdict was directed in favor of the plaintiff. A motion was made for a new trial, which was denied, and from the judgment thereupon entered and from the order denying a motion for a new trial, this appeal is taken.

The ground upon which the defendant claims a reversal is that there was no consideration for the note sued upon. This is clearly untrue, because the note of Hawkins & Co. was as much a consideration as though the money had been paid in cash, and the simple fact that Hawkins & Co. did not pay in no way affected the title to the defendant’s note.

It is further urged that the answer sets up a counterclaim, which should have been allowed.

We have examined the answer in vain to find any suggestion of a counterclaim or offset.

It is clear that no counterclaim could be set up, because no-cause of action could be maintained against the assignee, and even if an offset might be allowed, there are no allegations in the-answer making any such claim whatever; the whole defense proceeding upon the theory of want of consideration.

The point as to some agreement between the defendant and Chase, by which each were released and discharged, is not well taken, because there is no evidence to support it and no allegation in the pleadings which justified the admission of any such evidence. ,

Upon the whole case, therefore, we tnink that the judgment, and order appealed from should be affirmed, with costs.1

Barrett and Patterson, JJ., concur.