
    Thomas D. Rambaut, Appellant, v. William S. Tevis, Respondent.
    (Argued October 30, 1917;
    decided November 13, 1917.)
    
      Rambaut v. Tevis, 164 App. Div. 324, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 20, 1914, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury and granting a new trial in an action upon a promisory note made by the defendant to his own order. The trial court found that on or about the 15th day of February, 1909, Tevis delivered the note to Charles W. French; that thereafter, on or about the 5th day of May, 1909, French delivered said note to the plaintiff in payment of services theretofore and thereafter rendered by plaintiff, at the request of said French, in furtherance of certain enterprises in which said French and the defendant were interested, said services being professional services as an attorney and counselor at law, with respect to the organization and legal inception of the various enterprises involved, being reasonably worth the amount of the said note. The trial court further found that the plaintiff took the note in due course, in good faith, for value, and without notice of any infirmity in the instrument or defect in the title of any person with respect thereto. The Appellate Division held, as matter of law, that the plaintiff did not take the note in due course, holding that French was an agent of Tevis, that he used the note to pay his own debt to the plaintiff, and that where an agent or other fiduciary uses the property or funds of his beneficiary to pay his own debt the person taking the same, with notice of the agent’s interest, acts at his peril.
    
      Edward H. Wilson for appellant.
    
      Allan R. Campbell and Ellwood M. Rabenold for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation with costs in all courts; no opinion.

Concur: His cock, Ch. J., Collin, Cuddeback, Hogan, Pound, McLaughlin and Andrews, JJ.  