Kurz v. Fish — 49 N.Y. St. Rep. 870

Majority

p. 870

Ida C. Kurz, Resp’t, v. Henry Fish, Impleaded, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed January 18, 1893.)

Headnote

Bills and notes—Bona eides.

In an action upon a promissory note, transferred by the payee to the plamtiff before maturity, the defense was want of consideration, and that it grew out of a Bohemian oats swindling transaction. On the trial the evidence showed the note to have been so obtained. To show the dona fldes of plaintiff in the purchase of the note, a witness w>,s called and testified that he was present at the time of the purchase; that the note was offered by the payee to plaintiff’s husband in exchange for clothes, and he was told that it was “ perfectly good,” he replied that he would consult his wife and went out, and on Iris return stated that she would take it. Held, that this testimony was sufficient to justify the trial court in directing a verdict for plaintiff.

Appeal by the defendant, Henry Fish, from a judgment entered in Monroe county, April 1, 1892, upon the verdict of a jury at a circuit, directed by the court in March, 1892.

A. Rice, for app’lt; George D. Beed, for resp’t.

This action was brought upon a promissory note in the sum of fifty dollars, dated September 6, 1888, made by the defendant, Henry Fish, payable to one William J. Curtiss (also named as a defendant) or bearer, on the 1st day of December, 1889. The note was indorsed and transferred by the payee to the plaintiff before maturity. The defense is, want of consideration; that the note was procured from the defendant, Fish, by the fraud of Curtiss and others, and that it grew out of the usual Bohemian oats swindling transactions; and that the plaintiff was not a purchaser in good faith of the note for value before maturity.

Upon the trial, the customary evidence relating to Bohemian grain transaction was given, from which the jury would undoubtedly have adduced the conclusion, if permitted to do so, that the note obtained inception by fraud, and as between the parties thereto could not be enforced.

The sole question worthy of consideration at the circuit was, whether there was any evidence, or any deduction to be made

p. 871

from the evidence, which it was incumbent upon the court to submit to the jury, touching the bona fides of the plaintiff in the purchase of the note from Curtiss. The testimony of Mr. Kurz, the husband of the plaintiff, who acted in behalf of his wife, together with that of the plaintiff herself, was probably under the decisions in the cases of Vosburgh v. Diefendoif 119 N. Y., 357 ; 29 St. Rep., 448 , and Canajoharie National Bank v. Diefendorf 123 N. Y, 191 ; 33 St. Rep., 389 , such as to require the case, if the plaintiff’s right to recover had rested wholly upon this evidence, to be submitted to the jury, on the ground that the bona fides of the plaintiff and the credibility of herself and her husband were questions for the jury; but this was by no means the only testimony in the case. A witness, John Pote, was called, and testified that he was present at the time of the purchase by the plaintiff’s husband of the note in question ; the witness being a cutter in the plaintiff’s shop in Rochester. This conversation was in the latter part of August, 1889, before the maturity of the note. He says that Curtiss, and a man by the name of Keller, who was with him, offered this and two other notes of like amount in exchange for three suits of clothes; that they said that the notes were “gilt edged notes,” and were perfectly good, arid that the makers were responsible people, and Mi'. Kurz thereupon replied that he would consult with his wife in regard to them, and went out of the room, and on his return stated that he had seen his wife, and that she would take the notes.

This testimony was undisputed, and was given by a disinterested witness, whose character as a witness was not attempted to be impeached; and it was, we think, sufficient to justify the learned justice at the circuit in directing a Verdict for the plaintiff. f

It follows that the judgment appealed from should be affirmed.

Judgment appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.