
    Charles C. Ramey, Respondent, v. William Gleichmann, Appellant, Impleaded with William T. Foulks, Defendant.
    
      Bills and notes—fraud.
    
    Appeal by defendant Gleichmann from a judgment of the County Court of Kings county in favor of plaintiff, entered in the office of the clerk of said county on the 5th day of Hovember, 1914, upon the verdict of a jury; also from an order entered on the 6th day of Hovember, 1914, denying his motion for a new trial.
   Per Curiam:

We have the issue of fact whether two notes were condiionally given and then whether they were passed into the hands of plaintiff with knowledge that he was to hold the notes until the maker thereof the present appellant) should receive bills of lading for two carloads of oats or whether the notes passed to plaintiff for value in good faith-Amid this contradictory testimony are no contemporaneous letters or other writings to fix the circumstances of delivery of these notes. The indorser, though sued as a defendant, has not appeared and seems to be irresponsible. He describes sending these notes to the plaintiff in Hackensack in a bare envelope, without letter or other inclosure. The condition that attended this delivery, he says, was made known to plaintiff through a questionable telephone conversation the next day. Appellant, the maker of the notes, though kept out of the merchandise for which he claims his notes were given, did not write or make such a demand, but relies now on another telephone interview which occurred in plaintiff’s absence from his office, which plaintiff’s clerk denies. From this conflict of testimony the jury had to find whether the plaintiff took the notes in payment for sales to the indorser (Foulks) or if he received them with the above condition that plaintiff should send bills of lading for oats thus purchased but undelivered. The issues having been fairly submitted resulted in a verdict for plaintiff, which we are now asked to set aside. The jury, who could observe the demeanor and credibility of the witnesses before them, rejected this account of the giving of the notes conditionally as well as the alleged transfer thereof to plaintiff with his knowledge of such a condition. We cannot regard their conclusion as contrary to natural probabilities in such business transactions; and, as fraud is not to be presumed, it would require a clear preponderance of evidence to lead us to overturn a verdict sustaining plaintiff’s good faith. That the notes passed in the usual course of business for value is more likely than that, without writing, the notes were sent in such a qualified manner that their retention became bad faith and a misapplication in fraud of appellant’s rights. And it seems improbable, too, that the maker, substantially defrauded as he claims, would for weeks have contented himself with only a talk by telephone and that during the plaintiff’s absence from his office. The exceptions presenting no reversible error, the judgment and order of the County Court of Kings county should be affirmed, with costs. Jenks, P. J., Thomas, Stapleton, Rich and Putnam, ,JJ., concurred. Judgment and order of the County Court of Kings county affirmed, with costs.  