153 N.Y.S. 200 | N.Y. App. Div. | 1915
The action is brought upon a promissory note made by defendant to the order of Donald McLean, dated February 20, 1911, for the sum of $15,000, payable at the National Park Bank three months after date, with interest, and indorsed by Donald McLean, and by him transferred to plaintiff. It appears that the defendant was a client of McLean’s, who had originally obtained from her certain promissory notes signed by her to pay a balance due on an investment in what is called the “ Minwax ” business, purchased by her from Clifford L. Miller & Co. in January, 1910. These notes were discounted at the National Park Bank, and new notes were obtained from her from time to time by McLean, each set of notes being used ostensibly to take up prior obligations, the latter, however, never being returned to her. Finally, in February, 1911, the defendant’s son being very ill, she signed, at McLean’s request, four more notes, as those then-in the bank were due, and though she at first refused, she finally signed these four notes in blank on McLean’s representation that he was to use them to pay the balance due on the Minwax transaction. When delivered the notes bore only the defendant’s signature and the ■ordinary printed matter. One of these notes was filled in by McLean with the date February 20,1911, the amount $15,000,
The plaintiff testified that he had many times loaned money to McLean, who was also his attorney, and that McLean had told him he was in trouble with a woman client of his, whose money he had taken and invested in the Minwax Company, and who threatened, unless she was paid back her money, to begin disbarment proceedings against him. Nothing was said between them about the note in suit. On March 2, 1911, plaintiff finally agreed to loan McLean $15,000 to enable him to pay off this client who was pressing him for her money, and on March fourth plaintiff gave his check to McLean, to the latter’s order, in the sum of $15,000, drawn on the Brooklyn Trust Company, which was duly deposited by McLean for collection and the proceeds received by him through the National Park Bank of New York. Plaintiff testifies that on March second he promised McLean, by telephone, that he would send him the amount of this loan on the fourth, and that he did send his check for $15,000 on the morning of March fourth, whereupon McLean sent him the note in suit, together with two insurance policies in the sum of $10,000 and $5,000 respectively. He says that he had always received collateral security on the other loans he had made to McLean, and that he expected such security upon this loan of $15,000, although nothing was said about the need of security, and he had no knowledge of what the nature thereof would be until he received McLean’s letter. Plaintiff says that the note and the two insurance policies were inclosed in the letter from McLean which is in evidence, marked March second, but the letter itself contains no reference of any kind to the inclosure of a note, and refers only to “ these policies.” It is to be noted also that the letter is dated March second, whereas the loan was not made until March fourth, and plaintiff claims he received the letter after the loan was made on that date. No explanation is given as to why the letter
The judgment and order appealed from will, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.
Ingraham, P. J., Clarke, Scott and Hotchkiss, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.