Scott v. Havens — 45 N.Y. St. Rep. 32

Majority

p. 32

John Scott et al., Ex’rs, App’lts, v. Daniel S. Havens, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

Bills and notes—Defense.

In an action on promissory notes made by defendant or endorsed by him for his son, the defense was that defendant had placed the moneys in the hands of plaintiff's testator to be loaned to defendant’s son. The only evidence of such transaction was a receipt for that amount of money dated some six months before the loan, and it appeared that a mortgage held by testator against defendant for a similar amount was satisfied about the date of the receipt. Meld, that the defense was not proven.

Appeal from judgment in favor of defendant, entered upon verdict.

Action upon three promissory notes.

Ilarri M. Howell {Timothy M. Griffing, of counsel), for app’lts; Wilmot M. Smith {Thomas Young, of counsel), for resp’t.

The defendant gave to Lewis Scott two ifotes, one dated 10th of June, 1887, for $200 payable on demand, with six per cent interest. The other note was given August 6,1887, for $500, also bearing six per cent interest. The defendant’s son, Edward S. Havens, gave a note to Scott for $1,100 on the 27th of May, 1887, bearing the same rate of interest, and this note was endorsed by the defendant. Scott died in August, 1888, and his executors bring this action to collect, the three notes with interest. The answer of the defendant sets up as a defense that on the 27th of May, 1887, he deposited with Scott $1,658.08 ; that this sum was to be loaned apparently by Scott, but really by defendant to defendant’s son. That the $1,100 note was given by Edward S. Havens and endorsed by the defendant for $1,100 of this money, and that the loan was one of defendant’s and represented his money. That the. •defendant subsequently got from Scott the $500 and the $200, .and gave his notes, and that after Scott’s death he paid his executors the amount which Scott advanced to him over-.and above the amount of the deposit, $1,658.08. The evidence fails to show that the $1,658.08 was deposited with Scott for the purpose of loaning to defendant’s son. The evidence does show that on the 3d of November, 1886, Scott gave a receipt to defendant for $1,658.08. The receipt explains nothing as to the purpose of the payment. The deceased held a mortgage against defendant for

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$1,600. This mortgage was cancelled on the 5th of November, 1886. The amount then due upon the mortgage was probably the amount stated in the receipt. The satisfaction piece of this mortgage is dated and acknowledged the 30th of September, 1886, and the defendant produces a receipt from Scott, September 22d, 1886, for $1,645. The defendant’s wife gives evidence tending to show that the $1,645 receipt was given for the satisfaction piece. The receipts substantially fit the mortgage at the several dates of the receipts. There is no visible connection between either of them and the notes in suit. They were given some months afterwards. There was no defense proven to the notes. A receipt given in November, 1886, and another one in September, 1886, have no relevancy as to these notes given months afterwards. The payment of the $155 and its receipt was no defense further than it operated as a payment to the extent of the $155.

The judgment should be reversed, and a new trial granted, costs to abide event.

Dyioian and Pratt, JJ., concur.