Fiss v. Warren — 56 N.Y. St. Rep. 525

Majority

p. 525

William Fiss et al., Resp’ts, v. Henry M. Warren, Imp’ld, etc., App’lt.

(New York City Court, General Term,

Filed November 27, 1893.)

Headnote

Trial—Affirmative.

The defendant, by claiming and being allowed the affirmative, admits, in effect, that the plaintiff has proved, in all its essentials, a prima facie case by which he is compelled to prove his defense, if any.

Appeal from a judgment in favor of plaintiffs.

Edward B. La Fetra, for- resp’t; Strong, Hannon & Matheson, for app’lts.

The defendant, Warren, is the only one who defends. By the pleadings, Warren, who was the maker of the note in question admitted the making of the note and the delivery to Lowe, and that before maturity he endorsed same and delivered to Carroll, but denies it was for value, and asserts he has no knowledge sufficient to form a belief as to the endorsement and delivery of the note to the plaintiff. As a second and further defense he asserts as follows :

“ He further alleges that the said note referred to in the corn-paint was wholly an accommodation note, and was given by this defendant to the defendant Lowe under the following circumstances :

On and prior to the 31st day of December, 1892, the defendant, Joseph Carroll, was the owner, as this defendant is informed and believes, of a certain lease, stable business, horses, carriages, etc., covering and located at Nos. 124 and 126 East 121st street, in the city of New York, and conducted under the name of the Sylvan stables, that an agreement was entered into on or about said date between this defendant, the defendant Lowe, and the defendant Carroll, in and by which said defendant Lowe purchased from the defendant Carroll, a one-half interest in said business, and stock for the full consideration of $5,500. $5,500 advanced by this defendant to said Lowe, and by the latter paid over to said Carroll $2,500 in cash, and the balance by three promissory notes made by this defendant to the order of defendant Lowe for $100 each and payáble three, four and five months respectively from January 1, 1893; the second of said notes is the note specified in the complaint herein; that as the moving consideration for said purchase, a copartnership was simultaneously formed between said defendants, Carroll and Lowe, to continue until the first day of October, 1897, for the purpose of conducting the business theretofore carried on by defendant, Carroll, under the said name of the Sylvan stables, as by said copartnership articles and the contemporaneous agreement will more fully appear that the said money and promissory notes were advanced by this defendant to said Lowe as aforesaid in reliance upon the representations of the defendant Carroll to this defendant as well as to the defendant Carroll, that said stable business was highly prosperous and successful, and that he, the said Carroll, would devote his time and energies to the furtherance of said business as required by the copartnership articles, and that thereby the defendant Lowe would be enabled to repay from the profits of said business the amount advanced to him as aforesaid by this defendant in money and notes, said Carroll agreeing to extend said notes from time to time to enable said Lowe so to do; the defendant Carroll, after the formation of said copartnership did not observe, but in many ways and particulars broke, the articles of copartnership existing between him and the said Lowe, and endorsed and contrived by various ways and means to destroy and injure' the business of said Sylvan stables, with a view to forcing the defendant Lowe from said partnership, and did not devote his time and energies to said copartnership business as required by the articles

p. 527

of copartnership, and did in fact, as early as the month of April, 1893, destroy and force a dissolution of said partnership between himself and said Lowe, and that by his wrongful acts, resulting in the injury and depreciation of said partnership, the defendant Carroll has destroyed the consideration upon which said notes were delivered to him, to an extent in excess of the amount of said three notes, with the interest thereon, and that the consideration, if any at any time existing both between this defendant and the defendants Lowe and Carroll, and also between the defendant Lowe and the defendant Carroll has wholly failed.

“That said Joseph Carroll, as this defendant is informed and believes, at or prior to the date of the maturity of said note, deposited the same with the plaintiffs for collection to the account of the plaintiffs; and the plaintiffs did "not become the holder, thereof for value received and without notice, and that plaintiff, as this defendant is advised and believes, took and holds said note as an agent of the defendant Carroll, and. subject to all the equities and defenses existing as between this defendant and the defendant Carroll.

“ Wherefore, this defendant demands judgment that the complaint herein be dismissed as to him with costs.

Strong, Harmon & Mathewson,

Attorneys for defendant Henry H Warrent

45 William street, Hew York city.”

“City and County of New York, ss.:

“ Henry H. Warren, being duly sworn, says, That he is the defendant above named; that he has read the foregoing answer and knows the contents thereof; that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true.

“ H. M. Warren.”

“ Sworn to before me, this 15th ) day of May, 1893. j

“John Davis,

“ Notary Public. N. Y. Co.”

At the trial, the defendant Warren claimed and was allowed the affirmative. This in effect admitted that the plaintiff had proved in all its essentials a prima facie case by which the defendant was forced to prove his defenses, if any. It seems to us, from the admissions contained in the pleadings and an inspection of the second defense, that there was a good and valuable consideration and that the plaintiffs were bona fide holders for value and that no defense is presented by this defendant. We think the trial justice was correct in directing a verdict for the plaintiff.

Judgment should, therefore, be affirmed, with costs.

Van Wyck and Hewburger, JJ., concur.