
    Michael P. Crowley, Appellant, v. Horace See, Respondent.
    (Supreme Court, Appellate Term,
    May, 1909.)
    Trial — Reception and exclusion of evidence — Introduction, offer and order of proof — Rebuttal.
    In an action on a promissory note, where the defense is failure of consideration, and the plaintiff, in presenting his case, testifies the note was given for a loan of money, and the defendant thereafter offers evidence tending to establish .his defense, it is error not to permit the plaintiff to offer further proof of consideration.
    
      Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Sew York, first district, borough of Manhattan, in favor of the defendant upon a verdict.
    George E. Quigley, for appellant.
    W. J. Lippmann, for respondent.
   Lehman, J.

The plaintiff has brought an action upon a promissory note. The defense interposed was a failure of consideration.

The plaintiff at the opening took the stand and testified that, on the 31st day of December, 1907, he loaned the defendant $2,500 in cash, and received in return five promissory notes. The notes were then received in evidence. On. cross-examination the defendant asked him further questions as to the alleged loan; and the plaintiff testified fully upon the question, and also stated that his secretary, Miss Ryan, was present during the transaction. The defendant then put in his case which, if believed, would show that no consideration was ever given, and that he was the innocent victim of a fraudulent scheme.

The trial justice and the jury have evidently believed his testimony, but judgment must be reversed because it appears from the record that the plaintiff did not have an opportunity to put in all his evidence. It appears to me that, in spite of his testimony as to a loan, he was relying for his proof of consideration upon the presumption that the negotiable instrument was given for a valid consideration. The defendant’s testimony affirmatively showed a failure of consideration ; and the plaintiff should have been allowed to present the testimony of Miss Ryan in answer thereto, both upon the ground that all testimony of consideration was part of his case in rebuttal, and because it directly contradicted and impeached the defendant. Ankersmit v. Tuch, 114 N. Y. 51. The plaintiff also offered evidence as to admissions of defendant made out of court. These were not only for the purpose of impeaching the defendant’s credibility, but were offered for the purpose of affirmatively establishing the plaintiff’s case, and were wrongly excluded. The judgment should be reversed on these grounds. The plaintiff has not had a fair trial, even though it is probable that a jury upon a new trial will reach the same conclusion.

Dayton and Seabury, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  