
    Charles A. Friberg, Respondent, v. Oskar Block, Doing Business as the Von Bauer Iron Works, Appellant.
    
      Receipt by a creditoi' from his debtor of the note of a third pa/rty—a credit thereof upon an account rendered—it does not create a presumption that it was received as a payment—return of the note and a transfer of a judgment recovered thm'eon required.
    
    In an action to recover for work done and material furnished by the plaintiff to the defendant it appeared that after the indebtedness had been incurred the defendant, in reply to the plaintiff’s request for a payment upon account gave him an order upon one Gollner for $100, and that Gollner executed and delivered to plaintiff his promissory note for that amount; that the note was not paid, and that the plaintiff had recovered a judgment thereon against Gollner which had not been satisfied.
    The plaintiff offered to deliver up the note upon the trial, but made no offer to assign the judgment to the defendant. The defendant did not dispute these facts, but read in evidence a statement of the account rendered to him by the plaintiff, wherein the plaintiff had entered the following item of credit: “August 14, note of E. G. Gollner, $100.” The plaintiff showed that when the account was made out the note had not matured.
    
      Held, that the court properly charged the jury, as matter of law, that the defendant was not entitled to credit for the note, and refused to charge that this credit in the account established the presumption that the note was received in payment;
    That the plaintiff was,- however, bound to offer to the defendant not only the note, but also an assignment of the judgment for the reason that the possession of the note alone would not enable the plaintiff to enforce his claim against Gollner.
    Appeal by the defendant, Oskar Block, doing business as the Yon Bauer Iron Works, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 6th day of August, 1901, upon the verdict of a jnry-
    
      Sanford S. Gowdey and Thomas Watts, for the appellant.
    
      William F. Gonnell, for the respondent.
   Jenks, J.:

The defendant appeals from a judgment in an action for material sold and for work done. His attack is confined to an item of $100. Some time after the transaction, and after some payments had been received on account, the plaintiff asked a further payment, whereupon the defendant gave him an order upon one Gollner for $100. Gollner executed and delivered to plaintiff his promissory note for that amount. It appeared on the trial that the note had not been paid, and that the plaintiff had recovered a judgment thereon against Gollner which had not been satisfied. The plaintiff brought the note to the trial to be delivered up. The defendant made no dispute of this proof, but read in evidence a bill or statement of the account plaintiff had against him, wherein the plaintiff had entered this item of credit, “ August 14, note of E. G. Gollner $100.” The plaintiff showed without contradiction that when the account was made out the note had not matured. The learned justice charged the jury that as matter of law the defendant was not entitled to credit for the note, and refused, under exception, to charge that this credit in such account established the presumption that the note was received in payment; that the recovery of the judgment against Gollner entitled the defendant to a credit of $100, and that the burden of proof showing that the plaintiff did not receive the note in payment, “ under all these facts and circumstances,” was upon the plaintiff and that “ he has not met it.”

There were no “facts and circumstances” save those I have described. The acceptance of the note of Gollner did not work satisfaction of the precedent debt unless an agreement therefor was proven, and it was for the defendant to establish the agreement. (Noel v. Murray, 13 N. Y. 167; Youngs v. Stahelin, 34 id. 258, 265; Gibson v. Tobey, 46 id. 637, 640; Hall v. Stevens, 116 id. 201, 206.) The learned counsel in Ms brief cites the last-named case and none other. But he fails to mark the discrimination made in that very case (p. 206) between a present and precedent debt. I think that the defendant did not overcome the presumption, and that the court did not err M its disposition of this item of $100. The plaintiff could not, of course, have a double satisfaction, but so long as the judgment remained unpaid, there could be no double satisfaction of this item of $100. The plaintiff plainly was entitled to sue upon the original debt, and to bring the note, which was the basis for the said judgment, into court to be delivered up.

But previous to the trial of this action, the plaintiff in his own name had recovered a judgment upon this note, so that the note thereby became merged in the judgment. I think that he was bound to offer not only the note but also an assignment of the judgment to this defendant, for the reason that possession of the note alone would not enable the plaintiff to enforce his claim against Gollner.

The judgment must be reversed and a new trial ordered, costs to abide the event, unless the respondent, within twenty days, execute and deliver an assignment of said judgment to the appellant.

If this be done, then the judgment must be affirmed, without costs of this appeal to either party.

Goodrich, P. J., Bartlett, . Hirschbebg and Sewell, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event, unless the respondent, within twenty days, execute and deliver an assignment to the appellant of the judgment obtained by the plaintiff against Gollner; in which case the judgment affirmed, without costs of this appeal to either party.  