
    August Zinsser, Respondent, v. Columbia Cab Company, Appellant.
    
      Striking out, on the trial, a defense insufficiently alleged, in the answer —promissory note — evidence of a contemporaneous oral agreement that it should be paid not in cash, but in carriage hire, is inadmissible.
    
    The judge presiding at a jury trial in the Supreme Court has power to strike out a defense contained in the defendant’s answer, where the effect of‘his ruling is that the allegations constituting the defense are not sufficient as a defense to- ■ the plaintiffs cause' of- action.
    In an action upon a promissory note, payable by its terms three months after date, given by the defendant, a cab company, to the plaintiff in payment for a carriage; allegations contained in the answer that contemporaneously with the making of the note the defendant entered into an oral agreement with the plaintiff, which agreement was a condition precedent to the giving of the note, that the note should be ¡raid, not in cash, but by the plaintiff using the horses and carriages of the defendant until the hire of such carriages equalled the amount of the note* do not constitute a defense to the cause of action, as evidence of the contemporaneous oral agreement would not be admissible.
    Appeal by the defendant,-the Columbia Cab Company, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of March, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of March, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      J. Bronson Ker, for the appellant.
    
      E. Ormonde Power, for the respondent.
   Ingraham, J. :

The action is upon a promissory note whereby, three months after date, the defendant promised to pay to the plaintiff the sum of $350 for value received. The answer admits all the allegations of the complaint, and sets up a separate defense anda counterclaim. Upon the trial the court held that the separate defense was frivolous,.and the question arising upon the counterclaim was tried, upon which the jury found for the plaintiff. The defendant criticises this action of the court in striking out the defense as frivolous as not justified by the practice, as that motion could only be made at Special Term upon notice, under the provisions of the Code of Civil Procedure. The effect, howevei;, of this ruling was simply to hold that the allegations constituting the defénse were not sufficient as a defense to the cause of action set up in the complaint. The sufficiency of the defense was a question to be presented upon the.trial. It was not waived by the failure of the plaintiff either to demur or to move for judgment thereon as frivolous. The defendant asked to be allowed to amend the counterclaim. This the court refused to allow upon the trial; and it is not necessary to determine whether or not the court had power to allow such an amendment, as it was clearly within the discretion of the court to determine whether or not under the circumstances the answer should be amended.

The only question presented is as to the sufficiency of the defense. The instrument sued on was a promissory note whereby the defendant promised, three months after date, to pay to the plaintiff $350 at 101 and 109 West Ninety-second street, for value received. The defense alleged that at the time this note was given, the defendant was indebted to the plaintiff in the amount specified, which was the price of a carnage sold by the plaintiff to the defendant; that at the time of and cotemporaneous with the making of the nóte, the defendant entered into an agreement with the plaintiff, which agreement was a condition precedent to the giving of the said note, whereby it was agreed that the defendant was to give the plaintiff the promissory note set forth in the complaint for an indebtedness due by the defendant to the plaintiff amounting to the sum of $350; that the said indebtedness as represented by the said promissory note was to be paid by the defendant, not in cash, but in trade, the plaintiff to have the privilege of hiring or otherwise .using the horses and carriages belonging to the defendant, and of not paying for such use, but that the same was to be charged up against the plaintiff from time to time until thé full amount of $350 as represented by the said note was paid. If there is anything left of the rule that a cotemporaneous verbal agreement, which contradicts in terms a written obligation sought to be enforced, is not valid as a defense to an action to enforce the obligation, it would seem that this ruling of the court below was correct. By it the defendant agreed to pay so many dollars at a time and place specified. The obligalion is in writing, signed and delivered, and the making, execution and delivery of this obligation is admitted. The cotemporaneous oral agreement sought to be proved .contradicts'this written obligation. By it the defendant was not to pay this sum of money at the time and place specified, but was to pay it by hiring horses and carriages to the plaintiff and applying the amounts charged therefor to the.payment of the note. In all the cases in which cotemporaneous oral agreements have been alleged as a defense to an action upon an obligation of this character there was evidence to show that the full agreement between the parties was not set forth in writing or that the instrument was executed and delivered conditionally: This was the case in Juilliard v. Chaffee (92 N. Y. 529) upon which the defendant seems to rely. That case presented a question thus stated by the court: The apparent obligation incurred by the defendant, under the paper put in evidence by the plaintiff, was to pay the sum named upon demand in consideration of so much money then borrowed; but the evidence disclosed that it was only part of a prior parol arrangement, by the terms of which the payees were to advance money in anticipation upon debts owing by them, and on the defendant’s promise that it should be so paid in discharge of those debts, and which also provided for a return of the paper to the defendant when the money was so applied: ' The note did not constitute the agreement, nor is it set out in the complaint as the foundation of the action. It is evidence of part of the agreement, .and when relied upon by one party, the other might properly show in defense the whole transaction.” This condition does not exist in this case. Here the plaintiff sues upon the note, not upon the prior oral agreement. The defendant does not allege a prior agreement between the parties, and that the note was given as evidence of a part of that agreement; but simply alleges that when he gave the note it was accompanied by an oral agreement that it should not be paid according to its terms. -There is no question as to the liability of the defendant to pay the plaintiff this sunj of money, but it is alleged that the plaintiff, who was concededly entitled tó recover from the ■defendant the foil amount of this note, promised when the note was given that it should not be payable according to its tenor. But this ■oral agreement was entirely without consideration. The defendant alleges that he was indebted to the plaintiff in the sum of money represented by the note, and gave his note for the amount then due. At the same time the plaintiff promised that it should not be paid in. accordance with its terms. The defendant parted with nothing-He received an advantage, as the debt could not be collected until! the note became due. The plaintiff received nothing except the obligations to pay a debt that was then due. There was an entire failure of consideration to sustain any promise of the plaintiff. There seems to me to be no doubt but that such an agreement was entirely insufficient as a defense to an action upon the note.

It follows that the judgment and order appealed from should be affirmed, with costs.

Patterson and Lahghlin, JJ., concurred; Hatch, J., concurred upon the ground that as the debt was due when the noté was given, the agreement to pay in carriage hire was without consideration for its support and was, therefore, unenforcible.

Judgment and order affirmed, with costs.  