21 Barb. 351 | N.Y. Sup. Ct. | 1855
In the argument at bar, the defendant’s counsel confined himself to the discussion of a single proposition, viz: That the referee erred in deciding that the promise made to Morrison was available to the plaintiff. This is, perhaps, the only question in the case. Whether an absolute promise had been shown was a question exclusively for the referee, and he has found against the defendant. We cannot say that the finding of this fact was erroneous. The referee finds, as facts proved, that on the 28th September, 1842, one McLean made his promissory note, payable to the order of the defendant, three months after date, at the Gatskill Bank; that the defendant was the first indorser on the note, and that it was duly protested for non-payment, at maturity; that the note was the property of the plaintiff at the time of the commencement of this action, and that more than six years had elapsed since it became due and payable; that in the summer of 1845 (and whilst one Jesse Anthony was the sole owner of the note) the defendant promised James Morrison, jun., that he would pay the note to Anthony ; that Morrison, at the time of the promise, was neither the agenT or attorney for the purpose, or in any manner authorized by Anthony to confer or talk with the defendant in relation to the note, or the payment thereof; and that subsequently to the promise by the defendant to Morrison, Anthony transferred the note to the plaintiff. The counsel for
The judgment entered on the report of the referee should be affirmed.
Harris, Watson and Wright, Justices.]