
    Celia Stilwell, App’lt, v. Hannah E. Archer, Impl’d, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1892.)
    
    1. Trial—Affirmative of issue.
    In an action upon a bond, the answer alleged that the defendant was a married woman; that the bond was not given for the benefit of her separate business; that there was no consideration for it, and that it was never delivered to plaintiff by her. There were other affirmative defenses, such as fraud, usury, etc. Held, that the plaintiff had the affirmative of the issue, as he could not recover without showing consideration and delivery, and that it was error to allow the defendant to open and close.
    3. Same—Direction of verdict.
    Defendant gave evidence tending to show usury in the bond, and that her husband’s note was given in satisfaction of the bond. Plaintiff testified that she gave a check for the full amount of the bond; that there was no usury, and that she never authorized her husband to take the note mentioned. Held, that the evidence did not justify the direction of a verdict for defendant.
    Appeal from judgment in favor of defendants, entered upon verdict directed by the court.
    
      Norman A. Lawlor, for app’lt; Chauncey Shaffer, for resp’t.
   Barnard, P. J.

The plaintiff had the affirmative of the issue under the pleadings. The action is upon a joint bond executed by Eugene Archer and Hannah E. Archer t'a the plaintiff to secure the payment of $1,000. The defendant, Hannah E. Archer, answers that she is a married woman, and that the bond was not given for her séparate business; that there was no consideration for it, and that it was never delivered to the plaintiff. The answer sets up additional affirmative defense, that the bond was obtained by fraud and was usurious, and that the plaintiff accepted the note of Eugene Archer in payment and satisfaction of the bond. The plaintiff upon this state_ of the pleadings, could not take judgment without proof of the' delivery and consideration of the bond. The defendant had the affirmative of the issue given to her; she was then sworn, and testified that she signed the bond at the request of her husband, and that nothing was said by him to his wife as to the purpose or consideration of the bond which accompanied a mortgage upon Mrs. Hannah B. Archer’s separate property. That it had been talked of between the husband and wife that $1,000 was to be borrowed to improve Mrs. Archer’s place. Proof was given by Eugene Archer that he negotiated for the money with Stephen J. Stilwell, his nephew, and upon an agreement that he and Eugene Archer would use money as partners in buying and selling stocks. The money loaned belonged to the plaintiff. Stilwell soon after this married her. Proof was given by defendant, Mrs. Archer, tending to show usury, and that Stephen J. Stilwell owed Eugene Archer profits on stock bought and sold, and that Eugene Archer’s note was given for $1,000 at two years’ credit in satisfaction of plaintiff’s note. The plaintiff testified that she gave a check for $1,000 and received the bond and mortgage; that she never knew of any stock speculation; that there was no usury; that she never authorized her husband to take Eugene Archer’s note for her mortgage. The case went to the jury, and they failed to agree, whereupon the court directed a judgment for the defendant. The plaintiff is entitled to a new trial on the ground that the affirmative of the issue was with the plaintiff. Millerd v. Thorn, 56 N. Y., 402. And also upon the ground that the proof did not justify a direction of a judgment for the defendant. The plaintiff lent the money, and there was nothing proven beyond question which destroyed her mortgage.

The 'judgment should be reversed and a new trial granted,, costs to abide event.

Pratt, J., concurs; Dykman, J., not sitting.  