Leonard v. Crow , 49 N.Y.S. 1011 ( 1898 )

Conlan, J.

This is an appeal from a judgment entered on the verdict of a jury, and from an order therein made denying a motion for a new trial.

The action is brought, as appears by the complaint, on a promis- ’ sory note made by the defendant to the order of the plaintiffs for the sum of $1,036.48. .

The answer admits the making of the note, but it denies that there was any consideration paid and then sets up as a defense that the same was an accommodation, and that the defendant never was indebted to the plaintiffs, but made the note upon representations made by the plaintiffs to 'him, which induced the giving of the note in suit. .

The note in suit was one 'of a number of renewals given for the original note, which was the basis of the transaction between the parties. These renewals had been eighteen in all. During the progress of the trial a number of exceptions- were taken in the defendant’s behalf -to the rulings of the court on the questions touching the admissibility of ■ certain evidence, and it is upon these rulings chiefly that reliance seems to.be placed for a reversal ' of the judgment. y ■

We cannot think that counsel is serious in some of his contentions; for instance, Ms objection to the introduction in evidence of the note in smt, in view of the statement of witness called to prove the signature of the defendant, namely: “ I cannot be sure in regard to the note.”

That was in answer to the question whether he ever saw the defendant sign it, when the making and delivery were expressly admitted, by the answer, and the subsequent identification of the signature was positively made by the witness; and his insistence upon the right to examine the witness as to' his expert, knowledge of the handwriting, in view of the admissions already referred to, seems to us too trivial for serious consideration, and we are not in accord with the contention that tMs was sufficient for. a reversal.'

We do not find, in the case as made, any evidence in support of the defense alleged in the answer, namely that of accommodation.

The evidence adduced was upon the theory that the note was given under an order or assignment by a third party to whom the defendant was indebted.

It was claimed in his behalf that he did not owe tMs tMrd party anytMng; but that there was an indebtedness in favor of said party to the New York & Westchester Water Company, and it was claimed that the original of the note was given upon an understanding that it was not to be paid unless tMs debt was collected from the water company, and that it had not been collected.

The evidence of Youngman, the plaintiffs’ witness, who had the negotiations with the defendant for the making and delivery of the original note, upon this branch of the case, is, that when he called upon the defendant with the order of Mulligan & Co., who claimed that the defendant was indebted to them, the defendant said to Mm that he would investigate and see how much he owed them; and subsequently the note was given to cover so' much of the debt as was found due from the defendant to Mulligan & Co., and as represented by the order for payment to the plaintiffs. This, of course, the defendant demes.

We have examined with great care the other exceptions taken by the defendant in the course of the trial, and are of the opinion that the objections of the defendant were properly disposed of by the trial justice, and that such disposition was not prejudicial to Mm. The case was submitted to the jury on all the evidence. There was a conflict, and we tMnk Ms disposition of it was the correct one.

Our attention is not invited to the consideration of a single authority upon the appellant’s brief which calls for an interference - .with the conclusions reached upon that submission. It has been well said in the case of People v. Sutherland, 154 N. Y. 345, “ Where there is a conflict in the evidence, or where opposing inferences are to be drawn from the facts, it is the province of- the jury to determine what, the truth is) and the verdict under such circumstances is conclusive upon the court.”

For these reasons we thistle the judgment should be' affirmed. Judgment affirmed, with .costs.

Eitzsimons,' Oh. J., and Scotchman, J., concur.

Judgment affirmed, with costs.