Carpenter v. Cummings

20 Misc. 661, 46 N.Y.S. 252

Opinion

Van Wyck, Ch. J.

The plaintiff, an attorney and counselor, sues as the assignee, by written assignment from the indorsee of the payee of the note made by defendant, and .one of defendant’s alleged defenses was, that plaintiff, in violation of section 73 of the Code, bought, or was interested in buying, the note with the intent and for the purpose of bringing an action thereon. If the plaintiff did. so purchase the note.or was so interested in its purchase, and defendant had made any proof which tended to show that plaintiff had so done, a question would have been raised which should go to the jury for determination. But defendant was, by a number of adverse' rulings, to which exception was duly taken, prevented from making such proof, and for these errors alone, the judgment must be reversed. Such alleged defense, if. prqven at trial, to the satisfaction of the jury, must compel a verdict for defendant. Browning v. Marvin, 100 N. Y. 144. Judgment and order reversed -and new trial granted, with costs to appellant to abide the event.

McCarthy, J., concurs.

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