
    BALABAN v. DUGUNDJI.
    (Supreme Court, Appellate Term.
    December 22, 1911.)
    Appeal from Municipal Court, Borough of Manhattan, First District. Action by Theodore P. Balaban against Basile D. Dugundji. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered. Charles W. Gould, for appellant.
   GIEGERICH, J.

The plaintiff brought this action upon a promissory note, made by the defendant and payable to the order of the plaintiff. The answer admitted the making and delivery of the note, but denied that it was given for value, and set up the defense that it was given solely for the accommodation of the plaintiff, and that the defendant received no value for it. Upon the trial the defendant made no claim that the note in suit was made for the accommodation of the plaintiff, or that it was not given for value. The testimony given on the part of the defendant is uncertain, and it is somewhat difficult to ascertain just what the defense is; but it appears that the defendant at one time after the note in suit was given made a note payable to the order of one Alatary, who seems to have been in some way connected in business with the plaintiff, that this note was for the accommodation of either the plaintiff or Alatary, and was paid by the defendant when due, and that, when given, the plaintiff agreed to take care of it, or to pay it. Payment of the note in suit was not set up, nor was the accommodation note or its payment by defendant set up as a counterclaim. Under the present state of the pleadings and the evidence given, the defendant was not entitled to a judgment, and it must be reversed. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.  