
    John Howard, Respondent, v. John A. Moller, Appellant.
    (City Court of New York—General Term,
    June, 1894.)
    In an action brought upon a promissory note by a transferee, the answer alleged that the note was an accommodation one, made to enable the payee to obtain an extension of credit and to be returned, and the-defendant testified that the note was only loaned, although a receipt for rent was given therefor, and that such rent was to be paid in work. Plaintiff admitted that he had no interest in the note until after it was protested. Held,, that a direction of a verdict for the plaintiff was. error; that the question of actual consideration should have been submitted to the jury, plaintiff not being a bona fide holder before maturity.
    Appeal from judgment entered on a verdict by direction of the court, and from an order denying a new trial.
    
      Johnston & Johnston, for appellant.
    
      John R. Farrar, for respondent.
   Conlan, J,

This action was commenced against the defendant as maker of a promissory note.

The complaint alleges the making of the note payable to Russell Brothers before maturity and for value; also demand, and nonpayment by the maker.

The answer denies the making of the note as alleged and its ownership for value by the plaintiff, and alleges that the note was made to one Michael McMunn, who was doing business as Russell Brothers, as an accommodation and to enable him to gain an extension of credit where he was then indebted, and upon a promise by said McMunn (who was the Russell Brothers named as payees in the note) that he would in about a week return said note to defendant, and that the plaintiff had knowledge of this understanding.

The evidence of the plaintiff is as follows: “ I had no interest in nor did I become the owner of this note until after it was protested.” *

The evidence of the defendant is to the effect that the note in question was one of a series of three notes made about February twentieth of same year to the order of Russell Brothers, payable in two, three and four months, the note in suit being the last of said series.

' That he was induced to make said notes for the accommodation of the said McMunn; that at the same time the said McMunn executed a receipt to the effect that the notes in question were for'rent of a portion of premises Flos. 149, 151 and 153 Leonard street.

The defendant testified: “ The rent was to be paid with the work I shoidd receive from McMunn; as far as these notes were concerned, I did not agree to pay it with these notes. I only loaned him the notes and he put them for rent. We agreed that the rent should be paid in work.”

The testimony of the defendant'is somewhat confusing and contradictory, but we think the question of actual consideration, the plaintiff not being a bona fide holder before maturity, should have been submitted to the jury.

I am of the opinion that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Fíewburgek and Fitzsimons, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  