Olsen v. Ensign

To action upon a promissory note brought by a transferee after maturity, the defense is that no consideration was given for the promise. That the plaintiff, being the assignee of an over due debt, holds the same, subject to all the equities existing between the orignal parties is the settled law, Littlefield v. Albany County Bank, 97 N. Y. 581 , and the defense in question might well prevail if properly established. Plaintiff proved the due assignment of the note; without contradiction, and, in the absence of affirmative proof to the contrary, it is presumed that such assignment rests upon sufficient consideration. Donnelly v. Deering, 24 Weekly Dig. 18; Belden v. Meeker, 47 N. Y. 307 . The evidence in support of the defense consists of the testimony of the defendant alone and is to the effect that the note in suit was sent to the payee, one Dr. Wedekind, for discount merely, and that nothing was received by the defendant in the way of consideration. The plaintiff’s evidence consists of certain letters written by the defendant to Dr. Wedekind and also the latter’s testimony taken by commission in the state of California, which testimony is of little or no value as affirmative proof upon this issue being in a great measure a denial of recollection as to the precise points sough to be elicited by the interrogatories. From a judgment in the plaintiff’s favor the defendant appeals upon the ground that the decision of the justice is against the weight of the evidence. No exceptions for the appellant appears upon the record and therefore this ground alone requires attention. It is true that the decision as rendered involves a disregard of the defendant’s testimony, but the testimony of a party in his own behalf is not conclusive and the court is not bound, as matter of law, to regard it although it be uncontradicted. Kearney v. Mayor, 92 N. Y. 617 ; Dean v. Van Nostran, 23 Week. Dig. 97 ; Wolf v. Farley, 40 St. Rep. 808 ; Wilson v.Wyandance Springs Improvement Co., 4 Mis . R. 605 ; 54 St. Rep. 242 . While it is not the province of the appellate court to review the finding of the court below as to the credibility of a witness, Quincey v. Young, 5 Daly, 335 , we find certain statements in the defendant’s testimony which would justify in themselves the finding here made. The witness’ denial of the existence of any indebtedness to Wedekind, at the date when one of the letters in evidence was written to the latter by such witness promising to pay a certain debt for which he there confessedly assumed responsibility, most seriously affects his credibility, O'Brien v. McManus, 13 Daly, 37 , and the value of his testimony is not enhanced by the following extract from his