National Bond & Investment Co. v. Howard

218 A.D. 65, 217 N.Y.S. 925, 1926 N.Y. App. Div. LEXIS 5860

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 6, 1926
• Status: Published

Opinion

Per Curiam.

Action in the City Court of Buffalo on a promissory note made by defendant to the Woodward Motor Company, Inc., and by it negotiated to plaintiff. The answer pleaded a conditional delivery with fraud in the negotiation and notice thereof to plaintiff' and also pleaded usury. Plaintiff had judgment which was reversed and a new trial directed by the Special Term upon appeal. Plaintiff appeals.

Thé evidence on behalf of defendant was sufficient to cast upon plaintiff the burden of showing it was a holder in due course, and upon all the evidence the question was for the jury. (Joy v. Diefendorf, 130 N. Y. 6; Canajoharie Nat. Bank v. Diefendorf, 123 id. 191, 202; Hoberg v. Sofranscy, 217 App. Div. 546.)

If. the note had no inception between the original parties, the evidence is sufficient to show usury in its purchase by plaintiff. (Eastman v. Shaw, 65 N. Y. 522; Sabine v. Paine, 223 id. 401.) The question of fact here is in substance the same as under the other defense.

Whether the plaintiff, a foreign corporation, was legally doing business in this State and whether certain moneys paid to plaintiff by the Woodward Motor Company, Inc., could be considered as payments on the note in suit were questions which arose more or less incidentally on the trial.

Whether plaintiff is a moneyed corporation and was doing business in this State within the provisions of section 110 of the Stock Corporation Law, will, on the new trial, depend upon the evidence then to be adduced. The question need not be considered here.

Payment was not pleaded as a defense. In any event we are of opinion that the defense was not made out. It is apparent that there are substantial difficulties in its way.

We think the judgment must be affirmed, with costs; and since we do not know upon what ground the Special Term placed its decision, we have deemed necessary the foregoing brief statement of our own views.

All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ.

Judgment affirmed, with, costs.