67 A.D. 560 | N.Y. App. Div. | 1902
This action was brought to recover upon an instrument in writing, of which the following is a copy :
.“ New York, December , 1893.
“ Having been cause of a money loss to my friend Gerardine H. Hiekok, I have given her three thousand dollars. I hold this amount in trust for her, and one year after date or thereafter on demand I promise to pay to the order of Gerardine H. Hiekok, her heirs or .assigns, three thousand dollars, with interest.
■“ 1, 16, ’94. ELLA F. BUNTING.
“ 216 East 12 St., N. Y.”
The instrument remained in the possession of the plaintiff after its alleged delivery to her, and, as she is the person now seeking to ■enforce the same against the estate of the deceased, the rights and liabilities created by it are not affected by the intervention of third parties. The instrument begins by reciting that the deceased had been the cause of a money loss to the plaintiff, for which she had given her $3,000. How such loss was occasioned is not expressed in the instrument, nor was it shown upon the trial; and while the instrument recites that the decedent has given the plaintiff
Following the declaration of trust the instrument contains a promise to pay one year after date, or on demand, to the order of the-plaintiff, her heirs or assigns, $3,000, with interest. There are no-words of limitation of this promise in the language preceding it.. The promise to pay is express, and is to the order of the payee, and! it contains ev.ery essential element to constitute a promissory note as-defined by the Negotiable Instruments Law (Laws of 1897, chap. 612, § 320), and by authority. (Carnwright v. Gray, 127 N. Y. 92.). It is quite probable that the note is negotiable and subject to the law merchant; but whether it is or not is of no consequence in the-present case, for the reason that the rights and liabilities of the-parties affected by it are in no wise changed, whether it be negotiable or non-negotiable; and as respects consideration and delivery,, it is subject to the same rules in either ease. (Carnwright v. Gray, supra.) The plaintiff was, therefore, correct in declaring upon the-, instrument as a promissory note.
If the instrument itself was the act of the deceased and was founded upon a good consideration, support would clearly exist for the direction of a verdict,' made by the court, in favor of the plain
The plaintiff was called as a witness and testified that she had money transactions with the deceased prior to December, 1893, and that between the eighteenth and twentieth of that month she was at the house of the deceased, and wrote the body of the note at her dictation and at her request, and that there was no one else present at the time when the note was written. Whether the note was signed at this time the witness does not state, but it was not then delivered, as the witness further testified that in January, 1894, but: upon what day she did not recollect, she received the instrument in a letter sent to her by the deceased. This is the only evidence in the case showing that the body of the instrument was written at the dictation of the deceased, and that -part of it is conceded to be in the handwriting of the plaintiff. It is evident that-the evidence disclosed a personal transaction bétween the plaintiff and the deceased, and was, therefore, inadmissible under section 829 of the Code of Civil Procedure. No objection, however, was interposed by the defendants to the admission of the testimony, and it, therefore, became proof in the case which the' court was entitled to consider. The plaintiff was, however, an interested witness and the question of her credibility was for the jury; it was.within their province to disbelieve her upon this subject. (Elwood v. Western Union Tel. Co., 45 N. Y. 549 ; Volkmar v. M. R. Co., 134 id. 413.) So far, therefore, as'this testimony tended to show that the instrument was the act of the deceased, it was clearly a question for the jury, as was also the evidence respecting its delivery.
In support of the fact of delivery the plaintiff called Garret H. Underhill, a nephew of plaintiff, and his wife, who gave evidence
Upon this subject the defendants offered testimony tending to establish that the deceased and her sisters had loaned to the plaintiff $1,000, to secure which two daughters of the plaintiff executed and delivered their promissory note, which was indorsed by the plaintiff. The evidence of the sisters tended to establish the fact that this money was in fact loaned to the plaintiff and that she recognized the obligation to pay the same. ' This loan was made by the deceased and her sister over four years after the execution and delivery of the instrument, the subject of this action, and it still remains unpaid. Evidence was further given tending to show that the deceased and her sister Elizabeth were maiden ladies living in most intimate relationship and having a joint bank account; the surviving sister had never heard or knew of arty indebtedness of the
We are also of opinion that a question was presented as to whether the note was founded upon a good consideration, assuming it to have been delivered. It is undoubtedly the law that whether the instrument be negotiable or otherwise, the promise to pay raises the. presumption of consideration, even though it was not expressed(Carnwright v. Gray, supra.) Such presumption may, however,, be overthrown by proof, and when attacked by substantive testimony becomes a question of fact for the determination of a jury.. The evidence bearing upon the question of consideration, so far as: the plaintiff is concerned, is found in the recital of the instrument and in her testimony and declarations. The recital is that the deceased had been the cause of a money loss. This standing alone would be insufficient to show the existence of a present legal con
If these views are correct, it follows that the judgment should be reversed and a new trial granted, with costs to the appellants to abide the event.
O’Brien, Ingraham and McLaughlin, JJ., concurred; Van Brunt, P. J., dissented.
Judgment reversed, new trial ordered, costs to appellants to abide event.