
    JOSEPH NICKERSON, et al., Plaintiffs and Respondents, v. EMIL RUGER, WILLIAM RUGER, and RICHARD GURNEY, Impleaded with Isaac Taylor, Defendant and Appellant.
    
      Decided, January 14, 1878.
    I. BONA FIDE HOLDER FOR VALUE OF NEGOTIABLE PAPER.
    1. Holder for value, who is.
    
    (a) Surrender of past-due note.
    1. The holder of a past-due note surrendered it to the maker in consideration of having previously received from him a note made by a third person, payable to him, and indorsed by him, which note was not'due at the time of the surrender.
    
    Heed,
    that this was parting with a valuable consideration, so as to shut out the equities between the maker and indotsefe of the latter note.
    Before Curtis, Ch. J., Sanford and Freedman, JJ.
    
      Appeal from a judgment for $2,050.81, entered upon a verdict in the plaintiffs’ favor by direction of the court.
    
      Charles S. Spencer, attorney, and of counsel for appellant, among other things, urged :
    —I. The respondents will probably contend that because they gave credit for the amount of this note upon an antecedent indebtedness, that that was sufficient consideration. Then our answer is, that that is not parting for value (Stewart v. Small, 2 Barb. 559; Atlantic National Bank of New York v. Franklin, 55 N. Y. 235 ; Weaver v. Barden, 49 Id. 286; Turner v. Treadway, 53 Id. 650; Cary v. White, 52 Id. 141; Farrington v. Frankfort, 24 Barb. 554; Stalker v. McDonald, 6 Hill, 812 ; Coddington v. Bay, 20 Johns. 646 ; Evans v. Smith, 4 Bin. 386; Root v. French, 13 Wend. 572).
    
    II. This case differs from the cases reported in many of the books, wherein notes were exchanged, in this : that the consideration is truly expressed on the face of the notes so exchanged (Wooster v. Jenkins, 3 Denio, 187, and cases there cited; Mickles v. Calvin, 4 Barb. 304; Mohawk Bank v. Corey, Hill, 513 ; Montross v. Clark, 2 Sandf. 115 ; 4 Duer, 331). There are a number of exceptions that have not been criticised, but the most important have. But the extinguishment of a legal demand in its original form must be shown affirmatively, and it must appear to have been an actual, and intended extinguishment (N. Y. Ex. Co. v. De Wolf, 3 Bosw. 86, 97; Farrington v. Frankfort Bank, 24 Barb. 554).
    
      W. W. Goodrich, attorney, and of counsel, for re-respondent, urged :
    —Upon the undisputed facts the plaintiffs were innocent holders for value before maturity. All' testimony as to equities between Taylor and the defendants, was properly excluded (Fenby v. Pritchard, 2 Sandf. 151.; Swift v. Tyson, 16 Peters U. S. 1; Collins v. Gilbert, 5 N. Y. Weekly Dig. 168; U. S. Supreme Court, Oct., 1876; Park Bank v. Watson, 42 N. Y. 490; Day v. Saunders, 1 Ct. App. Dec. 495; Brown v. Leavitt, 31 N. Y. 114; Chrysler v. Renois, 43 Id. 209 ; Paddon v. Taylor, 44 Id. 371; 1 Parsons on Bills, 196).
   By the Court.—Curtis, Ch. J.

—The defendants are sued as the makers of a promissory note, dated June 21, 1875, indorsed, by Isaac Taylor, and payable four months from date. • The defense is that the defendants were accommodation makers, no consideration passing between them and the indorser, or between him and the plaintiffs, and fraud.

The plaintiffs produced testimony on the trial, to the effect that for the note in suit they surrendered two past-due notes of Isaac Taylor, of $1,500 each. These two notes were not surrendered' until after the receipt by plaintiffs of the note in suit, which fell due October 23, 1875, and it is not shown when they were surrendered. The only witness on this subject testifies, that he cannot swear positively that they were surrendered before October 23, 1875, and that he does not positively know. Subsequently in his testimony he says he “will” swear that he delivered the two notes before the maturity of the note in suit; after that, he testifies he cannot fix any real date, and would not swear to it. The testimony of this witness is substantially that the plaintiffs surrendered the two notes that are claimed to have been the consideration parted with for the note in suit, previous to the maturity of the latter, but that he cannot specify the exact date.

The plaintiffs cite the case of Fenby v. Pritchard, 2 Sandf. 151, to sustain their position, but I find this case is overruled by the court of appeals in Barnard v. Campbell, 58 N. Y. 73, where it is mentioned in the opinion, by Allen, J., as “so at war with principles recognized as well settled by this court in analogous cases, that it cannot be regarded as well decided.”

•As the uncontradicted testimony shows that the plaintiffs surrendered or parted with the two Taylor ‘notes before the maturity of the note in suit, the plaintiffs are not to be regarded as holders of the note subject to the equities between the defendants and Taylor. Consequently the defendants were not prejudiced by the refusal of the court to allow them to show what those equities were.

The judgment appealed from should be affirmed with costs. •

Sanfóbd and Freedman, JJ., concurred.  