M'Donald v. Rainor & Vantine

8 Johns. 442 | N.Y. Sup. Ct. | 1811

Per Curiam.

The judgment must be affirmed. The proof, as to all the demands of the plaintiffs below, exclusive of the note, was clearly such as could not warrant this court in reversing the judgment on that ground; and the circumstances relative to the note were sufficient to authorize the justice to allow it. It is unnecessary to say whether the justice was correct or not, in admitting the jurors, on the trial between the defendant and German, as witnesses, to prove what was then done with respect to this note. This testimony was immaterial, and went to establish nothing more than what the defendant himself had proved, by the record of that trial.

This record shows that the plaintiff in error objected against the payment of the note to German, on account of some defect in the endorsement, so that the title to the note was not vested in German. This objection prevailed, and he avoided a payment to German, and he shall not now be allowed, in opposition to his own proof, to say the endorsement to German was good. But admitting that he might set this up, there was no evidence offered, by the defendant below, to show that the note had been endorsed, or that the plaintiffs had ever, in any way, parted with their interest in it; and if not, there could be no objection against their recovering it from the defendant, who, clearly, by his own showing, has never paid it to any person.

Judgment affirmed.