
    Charles Rumpf, Respondent, v. Mrs. S. Gillespie Perkins, Impleaded, Appellant.
    (City Court of New York
    General Term,
    November, 1895.)
    Fraud in the procurement of the note in suit is not a defense, unless the holder thereof was a party to the fraud.
    Fraud is not predicable upon a mere opinion of ‘the payee of a note that the payment thereof would induce the holder to forbear pressing for payment of the balance of his claim, in part payment for which the note was given.
    Appeal from judgment in favor of the plaintiff.
    
      Black dc King, for appellant.
    
      Gruber da Bonynge, for respondent.
   Fitzsimons, J.

The defendant’s contention, that the notes in suit.were diverted, is not sustained by the evidence ; in fact, the evidence shows just the contrary.

The defendant made said notes to Perkins ife.Co., to be given to plaintiff in part payment of a debt owing to him by defendants,' and that is the precise' use ,to which they were applied; therefore, there was no diversion.

■ The defendant further contends that said notes were procured from her by Perkins & Co. by fraud. Granting that to be true, the evidence does not charge plaintiff with being a party to such fraud; and as he took said notes and other consideration in payment of his debt, the notes were good in his hands; but, as a matter of fact, no fraud on the part of Perkins & \Co.' was proven.

They evidently hoped that the payment of the notes to plaintiff would induce him not to prosecute his claim, and thus stave off the impending financial ruin which threatened them. In this supposition and belief (which was a mere opinion on their part) they were mistaken, for which mistake of judgment, of course, plaintiff is not liable.

The judgment is affirmed, with costs.

. Van Wtck, Ch. J., and McCarthy, J., concur.

Judgment affirmed, with costs.  