
    Wenalden Company (Substituted for John T. Pirie, Deceased), Respondent, v. Thomas F. Somers, Appellant.
    (Argued March 18, 1915;
    decided April 13, 1915.)
    
      Pirie v. Somers, 153 App. Div. 899, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 11,1912, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury in an action to recover upon a promissory note. The defense was that the note was an accommodation note whereby the credit of the defendant, appellant, was borrowed for a specific purpose under an agreement that the instrument should be devoted to that special purpose “ at once ” and that there was a diversion thereof amounting to a material breach of the agreement as to the special purpose, so that that special purpose was not effectuated and could not, under the circumstances, have been effectuated, and that the proceeds of the note were later used by the plaintiff to avert personal litigation, and that the accommodation maker of the note was not notified or informed of the diversion and had no means of protecting himself at the time in respect thereto.
    
      Henry W. Jessup and Daniel D. Sherman for appellant.
    
      Ernest P. Hoes and Frank L. Hall for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Willard Bartlett, Ch. J., Collin, Cuddeback, Hogan and Seabury, JJ. Not sitting: Miller and Cardozo, JJ.  