Trost v. Hinman

22 N.Y.S. 612 | N.Y. Sup. Ct. | 1893

PER CURIAM.

This action was begun March 6,1891, to recover on an instrument of which the following is a copy:

“May 2, 1887.

“On demand, I promise to pay Evelyn Mi Trost the sum of three hundred dollars, ($300.) J. C. Hinman.”

It is alleged in the complaint that the instrument at its date was made and delivered to the plaintiff; that payment thereof had been duly demanded; and that no part thereof had been paid. These allegations are not denied in the answer, but it is averred therein, as a sole defense, that the note had been sold and assigned to John Devlin, who, when the action was begun, was the lawful owner thereof, and the real party in interest. To establish this defense, the defendant introduced in evidence a written instrument dated June 24, 1890, and signed by the plaintiff, by which, in terms, she assigned to John Devlin all her “right, title, and interest in and to any and all claims and demands I have acquired against Jabez C. Sloat and Charles J. Hinman, or either or both of them, at the date of these presents.” Ho evidence tending to show a delivery of the instrument or of the note to John Devlin was given, nor was the note mentioned in the assignment. The mere proof that the plaintiff signed this assignment, without evidence of its delivery, or the delivery of the note, to John Devlin, was insufficient to overcome the presumption of ownership arising from plaintiff’s possession of the note at the trial. The judgment should be reversed, and a new trial granted, with costs to abide the event.