99 N.Y.S. 561 | N.Y. App. Div. | 1906
The court evidently directed the verdict in favor of the defendant Waldron upon the theory that the defendant’s testimony that' the checks and renewal notes were taken in payment óf the former
The defendant Ramsey was asked t.o state what took place at the time the renewal, notes were made, and he testified: “Mil Utter-back (the.plaintiff’s agent) asked me to sign those notes, and I said I would, and he said' lie. would return the old note to Waldron.. Q. Did you say yon would sign it on the-ground that the other note was paid? A. Yes; he said he would send it, and it was all satisfactory.” There was nothing else testified to as to what was said by the plaintiff’s agent at the time- the renewal notes and the checks Were given from which it could he inferred that, the agreement between them was that they were taken in payment. When testimony of this character is given by interested-parties and'.the old' note is in fact retained by the payee, it cannot be said as matter of law that it has been proven that the new notes were taken in payment, and it was,'therefore, error to direct a verdict for the defends ant Waldron.
With respect to-the defendant'Cudney a different'quéstioñ is presented. He was an indorser and denied that the .note had been'
The judgment as to the defendant Waldron should be reversed . and a new trial granted, with costs to the appellant to abide the event, and the judgment as to the defendant Cudney should be affirmed, with costs against the appellant.
All concurred, except Parker, P. J., not voting, and Cochrane, J., who concurred in result as to the defendant Cudney and dissented as to the defendant Waldron.
Judgment as to the defendant Waldron reversed and a new trial granted, with costs to appellant to abide event, and judgment; as to the defendant Cudney affirmed, with costs against the appellant.