Bradley & Currier Co. v. Meyer — 40 N.Y. St. Rep. 692

Majority

p. 692

The Bradley & Currier Co., Limited, Resp’t, v. Siegmund T Meyer et al., App’lts.

(City Court of New York, General Term,

Filed October 15, 1891.)

Headnote

Bills and notes—Evidence.

In an action against endorsers on a promissory note where the defense is that defendants endorsed to accommodate the maker, to enable him t» procure the cancellation of a judgment held by plaintiffs against him, and that it was given to them without procuring such cancellation, it is error to refuse to allow defendants to prove what was said to them by the maker to procure their endorsement, and that the maker owned property on which such judgment was a lien.

Appeal from judgment entered on verdict in favor of plaintiff.

James Dunne, for app’lts; Putney, Bishop & Slade, for resp’t

The defense by the endorsers was that they endorsed the notes to accommodate the maker, to enable him to procure the cancellation of a judgment held by the plaintiffs against the maker, and that it was wrongfully given to them by the maker without procuring such cancellation.

The defendants (the endorsers) undertook to prove what was-said by the maker to the endorsers to procure their endorsement, and the testimony was in several instances ruled out They also' undertook to prove that the maker owned property at the time, on which the judgment was a lien, and this was ruled out We think this was error. It was proved and not disputed that the judgment was not cancelled, so that the condition as to cancellation was material. For these reasons, and without considering the other exceptions in the case, we think the judgment must be reversed and a new trial ordered, with costs to the appellants to abide the event

• Mewburger, J., concurs.