128 N.Y.S. 1078 | N.Y. App. Term. | 1911
This action was brought upon a promissory note made by defendant to the order of plaintiff for $739.66. The defendant admitted the making of the note, but set up as a separate defense that the note sued on was a renewal note of a note for $700, given by defendant to plaintiff upon an oral agreement that the defendant should not be liable thereunder, and that the note was executed and given to the plaintiff merely as a receipt or voucher, to show the amount of moneys advanced up to that date by the plaintiff in the promotion of the Equitable Bond & Certification Company, not then in existence, but in the promotion of which company defendant claims plaintiff was interested. Defendant further claims that plaintiff subscribed to shares of the company, and that at the time of the execution of the note that it was agreed that the amount of the note should be credited plaintiff on the purchase of the stock; that about a year afterwards, plaintiff not having taken up his stock, at his request defendant gave the renewal note, adding interest, and gave this note to the plaintiff on the same understanding and agreement. This testimony of the defendant was denied by the plaintiff. The defendant
It is to be noted, while the claim of defendant is that plaintiff really loaned this money to the company, that nevertheless at a meeting of the company’s directors at which defendant was present they by resolution agreed to repay to defendant the moneys which plaintiff had loaned to defendant, that a year after the company was organized plaintiff wrote defendant that unless the note was paid he would bring suit, that defendant called on plaintiff and renewed the note, that the company never in any way recognized plaintiff as its creditor, that the company was organized for nearly a year before the defendant gave the renewal note, that one Rice called on defendant and asked .him to pay the note, and that he pleaded poverty and promised to pay. All these facts and circumstances, with the denial of plaintiff, are arrayed against the defendant’s testimony on an issue on which he had the burden of proof.
The order should be sustained, first, if the court erred in receiving the evidence of defendant’s alleged defense; or, second, if said defense was properly admitted, but the verdict was against the weight of evidence.
Order affirmed, with costs. All concur.