Trost v. Hinman — 75 N.Y. Sup. Ct. 94

Majority

p. 94

Evelyn M. Trost, Appellant, v. Charles J. Hinman, Respondent.

Headnote

Promissory note —presumption of ownership arising from, possession by the payee, notwithstanding an assignment by him of dll claims.

The introduction in evidence, by the defendant upon the trial of an action brought upon a non negotiable promissory note by the payee against the maker, of an assignment to a third party, signed by the plaintiff, of all the plaintiff’s claims and demands against the defendant and another, but not mentioning the note in suit, without evidence of the delivery of the assignment or of the note to the person named as assignee in such assignment, is insufficient to overcome the presumption of ownership arising from the plaintiffs possession of the note at the trial.

Appeal by tlie plaintiff, Evelyn M. Trost, from a judgment of tbe Supreme Court in favor of tbe defendant, entered in tbe office of tbe clerk of the city and county of New York on tbe 25 tb day of January, 1893, upon a decision of tbe court at tbe New York Gn’cuit dismissing tbe complaint.

Alexander Tham, for tbe appellant.

Horace G-rrnes, for tbe respondent.

This action was begun March 6, 1891, to recover on an instrument of which tbe following is a copy:

“ May 2, 1887.

“ On demand, I promise to pay Evelyn M. Trost tbe sum of three hundred dollars ($300).

“ J^[1] C. HINMAN.”

It is alleged in tbe complaint that tbe instrument at its date was made and delivered to tbe plaintiff, that payment thereof had been duly demanded, and that no part thereof bad been paid. These allegations are not denied in tbe answer, but it is averred therein, as a sole defense, that tbe note bad been sold and assigned to John Devlin, who when the action was begun, was tbe lawful owner thereof and tbe real party in interest.

To establish this defense, tbe defendant introduced in evidence a written instrument dated June 21,1890, and signed by tbe plaintiff,

* Sic.

p. 95

by which in terms she assigned to John Devlin all her “ right, title and interest in and to any and all claims and demands I have against Jabez O. Slote and diaries J. Hinman, or either or both of them, at the date of these presents.” No evidence tending to show a delivery of the instrument or of the note to John Devlin was given, nor was the note mentioned in the assignment.

The mere proof that the plaintiff signed this assignment, without evidence of its delivery, or the delivery of the note, to John Devlin, was insufficient to overcome the presumption of ownership arising from plaintiff’s possession of the note at the trial.

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

Present — Tan Brunt, P. J., O’Brien and Follett, JJ.

Judgment reversed, and new trial granted, with costs to abide the event.