Pelly v. Robinson — 40 N.Y. St. Rep. 652

Majority

p. 652

Herbert Cecil Pelly, Resp’t, v. Andrew J. Robinson, Impl’d, App’lt.

(Supreme Court, General Term, First Department,

Filed October 16, 1891.)

Headnote

Bills and notes—Fraud—Evidence.

In an action upon a promissory note brought by an endorsee thereof, where the defense is that it was procured by false representations, a deposition of the plaintiff stating that he purchased the note in good faith and for value, is not conclusive evidence against the defendant of the existence of such fact, and does not preclude him from giving evidence to prove that he was induced by fraud to give the note.

Appeal from a judgment recovered on a verdict directed by the court.

Edward S. Clinch, for app’lt; Lucien Birdseye for resp’t.

This case no otherwise differs from the two which have already been considered than in the amount of stock purchased by the defendant, for which his three promissory notes were delivered to Griffiths and a part of the purchase price paid in cash. Two of the notes were paid prior to the time when it is alleged that the fraud by which the defendant was induced to execute and deliver them was discovered. And by reason of the fraudulent representations it is alleged that the stock of the company was utterly worthless, and the answer contained an offer to surrender it up, and demanded a judgment for a return of the note. The same deposition was read in evidence upon the trial of the plaintiff, and by reason of its effect the court excluded all the proof proposed to be given by the defendant to establish^ the existence of the fraud, and the allegation that he was deceived thereby and induced to deliver this and the other notes to Griffiths. The exclusion of that evidence for the reasons already given was erroneous, and the judgment should be reversed and a new trial ordered, with costs to the defendant to abide the event.

Van Brunt, P. J., concurs.