
    Fuller Buggy Company, Appellant, v. Adelbert Waldron and Charles E. Cudney, Respondents, Impleaded with Joseph Ramsey.
    Third Department,
    May 2, 1906.
    Bills and notes — evidence—when question as to, whether new notes were given in payment of former notes is for jury—failure to show service of notice Qf dishonor on indorser.
    When the only evidence that checks and notes were given in payment of a past due note retained by the holder is the testimony of the makers and indorsers, a question of fact is presented, although the testimony is- not contradicted, for the witnesses are interested parties and on such evidence a direction of a verdict for the defendant is error. ,.
    When it is alleged in the answer of an indorser' of a promissory note that he; received no notice of dishonor, the burden is on the holder to show that due notice was given. Service of such notice is not shown by the mere testimony of the notary that not knowing the .address of the indorser he inclosed the notice of dishonor to a subsequent indorser with postage for forwarding the same to the prior indorser.
    Appeal by the plaintiff, the Fuller Buggy Company, from a judgment of the Supreme Court in favor of the defendants Waldron and Cudney, entered in the office of the clerk of the county of Warren on the 2d day of December, 1905, upon the verdict of. a jury rendered by direction of the court.
    The action is brought upon a promissory note made by the defendant Waldron and indorsed by the defendants Cudney and Bamsey. On March 14, 1905, after the note became due the defendant Waldron gave the plaintiff’s agents a check for $100 which was paid, and another check.dated April 1905, for $100, and two notes of: equal amount for the balance due on the first note, both indorsed by Cudney and Bamsey. The old note was retained by the plaintiff. The check dated April first for $100 was not paid at maturity and the plaintiff thereupon brought this suit upon the original note against the maker and indorsers, the complaint containing the usual allegations as to■ non-payment, protest and notice thereof-to the indorsers. The defendant Bamsey did not answer and judgment has gone against him by default. The- defense interposed was a denial and an allegation that the note had been paid. The plaintiff on the trial tendered to the defendant the unpaid check and notice of protest thereof and the two renewal notes and offered to surrender them, which offer the defendants’ counsel declined to accept. At the close of the proofs the court denied the defendants’ motion to dismiss the complaint but directed a verdict. in favor of both defendants and the plaintiff excepted. From the judgment entered on the verdict so directed the plaintiff has appealed.
    N. B. Spalding, for the appellant.
    
      James A. Leary, for the respondents.
   Chester, J.:

The court evidently directed the verdict in favor of the defendant Waldron upon the theory that the defendant’s testimony that' the checks and renewal notes were taken in payment óf the former • note was undisputed and, therefore, that no question of fact was presented for the jury- to determine. The burden of proof to show that the old note was paid rested upon the defendants, it having been taken in payment of a precedent debt. (Hall v. Stevens, 116 N. Y. 201, 206.) I do not think it can be said that they satisfied this burden as a matter of law." Whether the taking of the checks and the renewal notes constituted'a payment of the note sued upon depends, upon the intention of the parties as manifested by the facts and circumstances attending the transaction. (Matter of Utica Nat. Brewing Co., 154 N. Y. 268.) The only evidence .upon the. subject was given by the defendants themselves. They were interested witnesses, and although not contradicted, a question of fact was presented as to their credibility and the weight to be' given to their testimony, (Honegger v. Wettstein, 94 N. Y. 252; Canajoharie Nat. Bank v. Diefendorf, 123 id. 191, 200.) More than this, most of their testimony was not as to any facts upon the. subject of payment, but only as to conclusions, For instance, the defendant Waldron "testified with respect to the new notes and cheeks that the plaintiff’s manager “ accepted them as payment,” and in answer to the question, “ The renewal notes you gave him that day you gave him for payment'?” he 'answered, “Yes, sir.”-

The defendant Ramsey was asked t.o state what took place at the time the renewal, notes were made, and he testified: “Mil Utter-back (the.plaintiff’s agent) asked me to sign those notes, and I said I would, and he said' lie. would return the old note to Waldron.. Q. Did you say yon would sign it on the-ground that the other note was paid? A. Yes; he said he would send it, and it was all satisfactory.” There was nothing else testified to as to what was said by the plaintiff’s agent at the time- the renewal notes and the checks Were given from which it could he inferred that, the agreement between them was that they were taken in payment. When testimony of this character is given by interested-parties and'.the old' note is in fact retained by the payee, it cannot be said as matter of law that it has been proven that the new notes were taken in payment, and it was,'therefore, error to direct a verdict for the defends ant Waldron.

With respect to-the defendant'Cudney a different'quéstioñ is presented. He was an indorser and denied that the .note had been' duly protested. The burden to show this was on the plaintiff, as Cudney had served notice with his answer that he bad not received notice of protest. The only proof given by the plaintiff on the subject of service of notice was that given by the notary in whose hands the.note was placed for protest. He testified that the note contained no designation of the address _ of either of the indorsers, Itamsey or Cudney, and that notices for the several indorsers were mailed to the bank at Jackson, Mich, (where plaintiff’s principal office was located), inclosed in an envelope directed to them and accompanied by a postage stamp for mailing notice to the indorsers.” It was shown that the Jackson bank was a subsequent indorser, but there was no evidence that this bank ever sent the notice to Cudney, who had resided at Corinth, Saratoga county, for eighteen years. This was the only notice shown to have been addressed to him; but as this was not mailed to him but to the Michigan bank, the plaintiff failed to show a fact essential in establishing its cause. of action against him. Cudney was also sworn in his own behalf and said that he had never received notice of presentment or protest. There was no conflict in the evidence in this respect, and the court, therefore, properly directed a verdict in his favor on the ground that it had not been shown that he was nroperly charged as indorser.

The judgment as to the defendant Waldron should be reversed . and a new trial granted, with costs to the appellant to abide the event, and the judgment as to the defendant Cudney should be affirmed, with costs against the appellant.

All concurred, except Parker, P. J., not voting, and Cochrane, J., who concurred in result as to the defendant Cudney and dissented as to the defendant Waldron.

Judgment as to the defendant Waldron reversed and a new trial granted, with costs to appellant to abide event, and judgment; as to the defendant Cudney affirmed, with costs against the appellant.  