Murphy v. Carey — 54 N.Y. St. Rep. 294

Majority

p. 294

John G. Murphy, Resp’t, v. James F. Carey et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

Bills and notes—Consideration.

On the purchase of a quarry by plaintiff, defendant, at his request, gave a note to the vendor, O, as a personal contribution to plaintiff. The notes in suit, with others, were afterwards given to wipe out said note, which defendants claimed was to be exchanged for the smaller ones, which was not done. There was evidence tending to show that the large note was owned by plaintiff at the time of the giving of the ones in suit and that it was given to defendant, and also proof that it was owned by 0. and was to be given up to defendant when the new notes were delivered. Held, that a case was made for the jury, and that a direction of a verdict for plaintiff was error.

Appeal from judgment in favor of plaintiff, entered on verdict directed by the court.

J. Stewart Ross, for app’lts ; James McKeen, for resp’t.

This action is brought to recover the amount due upon three promissory notes, all made by the ~ defendant; Carey, to the order of defendant Cillen, and indorsed by him, all dated May 25, 1891, and maturing in three, six and nine months from date. The defendants admit the making and indorsement of the notes as alleged, but the answer avers that at the time the notes were given to the plaintiff, the defendant, Carey, was not indebted to him except in the sum of about $2,000, which had been fully paid by Carey. The answer does not plead the fact actually tried. It was proven that on the day the notes in suit were given there was a settlement of a claim in an action pending in favor of plaintiff against Carey alone. In this settlement $2,100 was found to be due the plaintiff, and the parties when they agreed upon the amount also agreed to give time in which to pay this sum due, is certain monthly payments, about $200 per month, commencing June 1, 1891, and ending March 1, 1892. Presumably these payments have been made ; but upon the same day the settlement was made the notes in the present action were given as has been stated, and they were given for an entirely different purpose. One Dugan owned a quarry property. They conveyed to one O’Brien, a brother-in-law of Murphy. He conveyed to Murphy & Co. Upon this transfer Carey gave his note to O’Brien for $5,000 at plaintiff’s request as a “ personal contribution ” to Murphy, whatever that expression may mean. The notes of $750 each were given on this $5,000, note and that was admittedly outside of the amount covered by the stipulation. The defendant Carey states that these $750 notes, with four others, were given to wipe out the $5,000 held by O’Brien, and that this

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large note was to be exchanged for the small ones, which has not been done. There seems to be no doubt but that the $5,000 note was the consideration of the notes sued upon. There is proof tending to show that plaintiff owned the $5,000 note at the settlement and even tending to show that it was given up to Carey on the occasion. There is also proof tending to show that O’Brien owned the note at the time and that the same was to be delivered up to defendant Carey when the new indorsed notes were delivered. This was not done and a case was made for the jury.

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

Dykman and Pratt, JJ., concur.