195 A.D. 310 | N.Y. App. Div. | 1921
The action is to recover on two promissory notes made by the defendants and payable in Nebraska. Defendants answered jointly, pleading as partial defenses that the notes were made and delivered pursuant to a corrupt and usurious agreement and that, therefore, the plaintiff was not entitled under the law of Nebraska to recover the amount claimed.
The record shows that when the cause was reached for trial a jury was waived and that the issues were thereupon tried by the court without a jury. Counsel for the plaintiff opened, stating the issues as presented by the pleadings; and counsel for the defendants in opening claimed a statement of facts somewhat different from those pleaded, in that he claimed that the defendants were partners and that one of them had paid one-half of the amount due on the notes and the other had paid a proportionate amount of the balance and had secured the discontinuance of this action as to him, and that under the law of Nebraska this released both makers, and also that the plaintiff was not the real party in interest, but brought the action for the purpose of giving one of the defendants a right of action over against the other, his copartner, to get back the money on a judgment in favor of the plaintiff, to whom he had paid it. Counsel for the plaintiff denied that the facts were as so claimed. Counsel for the plaintiff then took the stand and offered in evidence a computation of the balance due according to the law of Nebraska. On his cross-examination it was shown that $4,000 had been paid on one of the notes by the defendant Bolster and that a consent to a discontinuance .of this action as against him had been signed by the plaintiff and was held by the witness. Defendant then undertook, but without success, to show that the notes were usurious in that they were given for a loan and that another note for $3,300 was given by the makers to the plaintiff, which it was claimed rested on the same consideration; but it was shown that it was given for a separate and independent' consideration. A
The only points made in behalf of the appellant are that the granting of the order was an improper exercise of the power of the court under section 999 of the Code of Civil Procedure in that the order was made on the theory of surprise, which is not a ground for such a motion, and that the consent
It follows that the order should be reversed, but since the reversal is on a ground not presented to the trial court or taken here by the appellant, without costs, and motion denied, without costs.
Clarke, P. J., Smith, Page and Merrell, JJ., concur.
Order reversed, without costs, and motion denied, without costs.