Rosenstock v. Montague , 59 N.Y.S. 500 ( 1899 )

Freedman, P. J.

The action is founded upon a demand note given by defendant to plaintiffs’ testator. The answer alleges, in substance, that the note was given upon the distinct condition and understanding that the same should not be presented or the payment thereof demanded until a certain event had taken place, and that such an event had not yet occurred.

Upon the trial, the defendant, against an objection and exception taken by the plaintiffs, was permitted to and did give proof in support of the defense pleaded, and at the close of the whole case both parties moved for the direction of a verdict and neither asked to go to the jury. The court directed a verdict for the defendant. The judgment rendered upon the verdict having been affirmed by the General Term of the City Court, all controverted facts and all inferences claimed by the defendant to arise from the evi? dence must, for the purposes of the present appeal, be deemed to have been conclusively determined in favor of the defendant. Eor the reasons stated, plaintiffs’ exception to the reception of the testimony referred to presents the only question for review on this appeal. Under the decisions of Bookstaver v. Jayne, 60 N. Y. 146; Juilliard v. Chaffee, 92 id. 529; Reynolds v. Robinson, 110 id. 654, and Blewitt v. Boorum, 142 id. 357, the said testimony was clearly admissible. The cases relied on by the appellants, to the effect that the terms of the note cannot be varied by parol evidence, have no application to the case at bar.

MacLean and Leventbitt, J.J., concur.

Judgment affirmed, with costs.