White v. Kibling

11 Johns. 128 | N.Y. Sup. Ct. | 1814

Per Curiam.

e e The verdict is clearly according to the justice of the case. The testimony is abundantly sufficient to show a payment of the note to the payee, and that the fact of such payment was communicated to the plaintiff, before the note was transferred or delivered to him. The only doubt that can arise is, as to the competency of the evidence admitted to prove the payment. This evidence principally consisted in the proof of what was sworn to by William Otis on a former trial of this cause, in the common pleas of Jefferson county. It was objected that this testimony was not admissible. As a general' proposition, this objection was not well taken, and was, therefore, properly overruled. There was no pretence that Otis, if living, would not have been a competent witness, and no such objection could have been made; for, even admitting him to have stood in the character of an endorsee of the note, yet he was a competent witness to prove a payment, ^(a) We must presume that the pendency of the former trial was admitted, as no objection appears to have been made, at the trial, on that ground. This testimony was, then, properly admitted; and shows, con-elusively, that when the note was delivered to the plaintiff, he was informed that it had been paid, and of the manner in which the endorsement, by Daggett, the payee, had been procured. There was no pretence that the payment to Daggett was fraudulent. If so, it was matter which ought to have been submitted to the jury. But the case does not furnish evidence from which ¡the jury could reasonably have inferred fraud. The motion for a now trial must, therefore, be denied.

Judgment for the defendant-.

(a) 2 East, 450, Shitty on Bills, 284. Peake’s N. P. 6. 52.