
    Benjamin F. Watkins, Appellant, v. Augustus N. Peters, Respondent.
    (City Court of New York, General Term,
    July, 1897.)
    Notes given as memoranda, until a settlement is made.
    Where notes are given merely as memoranda, and are not to be used or paid until there has been an adjustment between the parties to them, the holder of the notes should not be allowed to recover against the maker, where it appears that stock transactions had between the parties and out of which the notes arose are still unsettled. . '
    Appeal by plaintiff from judgment on werdict for defendant and order denying new trial.
    Harrison & Byrd, for appellant.
    J. W. & C. W. Ridgway, for respondent.
   Van Wyck, Ch. J.

The facts were not very fully brought out by either party at trial, yet there is sufficient proof to justify the verdict for defendant. It appears that prior to the giving of the original notes by defendant, he was the owner of 160 shares of a certain stock; the plaintiff was then under contract to sell and deliver 100 shares of like stock for $1,000, but for some reason could not make delivery and requested defendant to deliver 100 shares of his own stock and receive the $1,000, which defendant did, and thereafter lent $800- of this sum to plaintiff who thereafter returned $800 in two sums, $500 and $300, to defendant, who gave notes for the same, merely as memoranda, but not to be used or paid until there was an adjustment between him and plaintiff in regard to defendant’s 100 shares of stock, for which plaintiff had received $800 cash out of the purchase price of $1,000 therefor; that thereafter defendant delivered to plaintiff’s attorney, duly authorized to receive, sixty other shares of his stock, and received a further sum of about $500, to cover which he gave another memorandum note, not to be used or paid until there was an adjustment by plaintiff in regard to these sixty shares of defendant’s stock, and that these 160 shares of defendant’s stock have not been returned by plaintiff, nor has there been any adjustment in regard to the same. The judgment and order are affirmed, with costs.

McCarthy and. Sohuchman, JJ., concur.

Judgment and order affirmed, with costs.  