142 N.Y.S. 305 | N.Y. App. Term. | 1913
While this court should not lightly disturb a finding of fact by the court below, there are some circumstances connected with the defendants’ story that seem to me so improbable that I believe, in the interests of justice, there should be a new trial, where, perhaps, the true facts can be more satisfactorily elicited. It seems most improbable that the defendants should not only give their notes upon a promise by the plaintiff to return the guaranty, but should pay all but one without receiving back the guaranty, especially when that guaranty provided that it was 'revocable only in writing. In this connection, also, it is fair to point out that the plaintiff claims that the notes were paid by the principal debtor, and not by the defendants, and the defendants fail to produce the checks by which they claim they paid the notes. The defendants also claim that they do not remember that they received the letter, dated March 8th, demanding the payment of the principal debtor’s account before they demanded return of the guaranty as a condition for the payment of the last note; yet they admit that they made this demand after consulting with counsel. Moreover, they fail to produce as a witness the principal debtor, their brother-in-law, claiming that they do not know his address; but they are very vague as to when and how an estrangement between them arose. It may be that upon a new trial the defendants would be able to explain these matters more satisfactorily, and corroborate their story, either by the production of the checks, or by the testimony of the principal debtor; but I cannot feel that upon this record they have established their defense.
Judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.