Bell v. McNiece

17 N.Y.S. 846, 43 N.Y. St. Rep. 793, 1892 N.Y. Misc. LEXIS 545

• Court: City of New York Municipal Court
• Decided: February 8, 1892
• Status: Published

Opinion

Fitzsimons, J.

The defendant McNiece made a promissory note, payable to defendant Byrne, who, before maturity, indorsed it over to plaintiff. The defendant McNiece, by his answer, alleges that said note was obtained from him by the defendant Byrne by false representations, and without consideration therefor, and that plaintiffs were not holders of the same for value. The trial justice directed a verdict for plaintiffs for $504.19. The testimony shows that the note in suit was received from defendant Byrne by plaintiffs as a payment on account of material furnished him by plaintiffs prior to their acceptance of said note. The defendant McNiece then endeavored to prove that the defendant Byrne obtained the note in question by false representations, and that no consideration was given therefor. The trial justice excluded all such proposed testimony. In our opinion his rulings in this respect were clearly erroneous. As above indicated, the testimony shows that the note in suit was received by plaintiffs and applied by them in payment of a pre-existing debt. It does not appear that at the time of such acceptance they parted with value or relinquished some right because of the indorsement over to them of said note. Under these circumstances they received the note subject to any and all defenses which might have been urged against their indorser, Bryne. Prince v. Jersey Co., 13 N. Y. Supp. 567, (City Ct. Gen. Term, Feb., 1891.) Therefore it was error for the trial justice to exclude the testimony offered by defendant McNiece tending to show that the note was obtained by false representations and without value. Judgment reversed. New trial ordered, with costs to appellant to abide event of action. All concur.