Burr v. Smith

21 Barb. 262, 1855 N.Y. App. Div. LEXIS 131

• Court: New York Supreme Court
• Decided: December 3, 1855
• Status: Published

Opinion

By the Court, Welles, J.

The only question in this case is, whether the transaction between Riley and the witness Folger, as testified to by the latter, amounted to a payment and satisfaction of the note in question, or a sale and transfer thereof by Folger to Riley. The referee finds that the note was paid and satisfied to Folger-while in his hands, he being one of the owners thereof at the time, the note then being over due.

The note was the debt of Myron Norton, one of the makers; the defendant and Melancthon Lewis haying signed it as sureties for him. The payments made by the defendant to Eolger and Joseph S. Lewis while the note was owned by them and in their possession, amounted to one half of the amount for which it was originally given, with interest. The last payment made by the defendant, was on the 7th of Eebruary, 1852. Judge Eolger testified that a week or fortnight afterwards he was called upon by a person who he did not know at the time,' but who he had since learned was George S. Riley. That Riley came into his office and asked the witness if he was Mr. Eolger, and upon being answered in the affirmative, inquired if the witness had such a note, and was told that he had. Riley then asked whether he, Eolger, would receive the money upon it, and Eolger told him, in reply, that he was willing to take the money. Eolger then got the note and Riley paid the balance due on it and took it away. On the same occasion the witness asked Riley if he should cancel the note, and he declined having it canceled. The witness testified, on a re-examination, that no person ever applied to him to buy the note. This transaction was after the note was past due, and the plaintiff is therefore not entitled to be regarded as a bona fide holder of the note in such a sense as to exclude the equities between the defendant and Riley.

In my opinion, the referee’s finding, upon the evidence, that the note was paid and satisfied, is sustained by the evidence, The production of the note at the trial was prima facie evidence that it belonged to the plaintiff, and that he had received ■it before due, in the regular course of business. But this presumption is fully met and rebutted. It remained in the hands of Eolger and Lewis, who had purchased it before maturity, until after it was dishonored, and until Riley obtained it by paying what was due upon it. as before stated, and without then or at any other time saying a word about its purchase. It is true he declined having it canceled; but that circumstance was not enough, in my judgment, to overcome the presumption arising from the facts proved, that it was paid and ex-tinguiahed. It does not prove a purchase, and unless it was purchased by Riley, it was satified by the payment. Folger regarded it. as a payment, and not a sale; and he was a party to the sale if there was one. It is a suspicious circumstance, that Riley was not produced as a witness. He knew in what character and in whose behalf he paid the money, and whose money it was with which the payment was made.

[Monroe General Term, December 3, 1855.

The judgment appealed from should be affirmed.

Selden, T. R. Strong and Welles, Justices.]