
    ELIZABETH SWEENEY, Plaintiff and Respondent, v. ROBERT PRIOR, Defendant and Appellant.
    I. Payment.—Presumption of.
    
    1. Transfer of property.
    
      (a) When presumed to he given in pa/yment.
    
    1. Only when made at the time of the creation of the indebtedness.
    (5) When presumed not to he given in payment.
    
    
      %. When the transfer is made after the creation of the indebtedness.
    Before Speir and Freedman, JJ.
    
      Decided November 4, 1878.
    The action was brought to recover a balance of $597, for goods sold and delivered, and for certain disbursements.
    Defendant denied the claim, and alleged:
    That the goods were sold to one Guilfoyle, who had a contract with the corporation of the city of New York for the improvement of One hundred and fifty-second street; that Guilfoyle being indebted to defendant, and desiring loans for the prosecution of the work, assigned said contract to defendant as security only ; that the payments made by defendant to plaintiff were made on behalf of Guilfoyle, of all which facts plaintiff had knowledge ; and that by an assignment of thirty per cent, of said contract, defendant on behalf of Guilfoyle paid plaintiff in full.
    Upon the trial, testimony was given on both sides, and defendant’s motion for a non-suit and the direction of a verdict in his favor were denied, to which rulings defendant excepted.
    
      In substantiation of defendant’s version, and to show that credit was giren to Guilfoyle, the defendant introduced a note made by Guilfoyle to defendant’s order and indorsed by defendant to the plaintiff, ■ for the sum of $853:93, and also a receipt by plaintiff acknowledging the receipt from defendant of the sum of $721.40, “for and on account of stones furnished to William Guilfoyle, for One hundred and fifty-second street.”
    The plaintiff thereupon showed, in explanation, that said note and receipt were given in the form described at the suggestion of the defendant, in order to show the destination of the goods.
    The issues were submitted to the jury, who found for the plaintiff.
    Defendant moved for a new trial, on the minutes generally, which motion was denied, and defendant excepted.
    Judgment was thereupon entered upon the verdict, and the defendant appealed both from the judgment and order.
    
      Charles W. Dayton, for appellant.
    
      Rufus L. Scott, for respondent.
   By the Court.—Freedman, J.

Upon the question whether the goods in suit were sold by plaintiff to Guilfoyle or to the defendant, the evidence was sufficient to carry the case to the jury, and consequently it would have been error to dismiss the complaint, or to direct a verdict for the defendant. The receipt and note were open to explanation (Buswell v. Poineer, 37 N. Y. 312; Ryan v. Ward, 48 Id. 204; Trull v. Barkley, 11 Hun, 644; Churchill v. Bradley, 43 N. Y. Superior Ct. R. [11 J. & S.] 170).

ISTo complaint is made of the manner in which the question to whom the sale was made was left to the jury, and none of the exceptions presented by the record touch this point. The verdict must therefore be treated as conclusive upon this branch of the case.

The remaining questions arise upon the assignment of thirty per cent, of the moneys to be received under the contract, which the defendant as assignee of the contract executed and delivered to the plaintiff. Plaintiff claimed to have taken the said assignment as collateral security only, while the defendant insisted that it was taken in payment. This question was also left to the jury, and they were instructed to render a verdict for the defendant, in case they found that the plaintiff took it as payment. Of this disposition, the defendant has no right to complain; for even if the assignment be treated exclusively as a transfer of the obligation of a third person, which is the theory most favorable to the defendant, it could only be deemed to have been accepted in payment and satisfaction, if it had been given at the time of the sale of the goods (Whitbeck v. Van Ness, 11 Johns. Ch. 409 ; Breed v. Cook, 15 Id. 241).

But as there was no dispute as to the fact that the assignment was made after the sale, the presumption was that it was not taken in payment and satisfaction of the precedent debt, and the onus of establishing that by the agreement of the parties it was so received, was upon the defendant (Noel v. Murray, 13 N. Y. 167; Vail v. Forster, 4 Id. 312; Gibson v. Tobey, 46 Id. 637; Turner v. Bank of Fox Lake, 3 Keyes, 425 ; Flower v. Lance, 59 N. Y. 603 [608]).

The defendant failed to show any such agreement, and the testimony on the part of the plaintiff showed that the assignment was received as collateral security merely. Under these circumstances, the defendant was not entitled to have the jury instructed that the acceptance of 'the assignment was a payment pro tamo, unless specially agreed otherwise, and the submission of the whole question to the jury with the express instruction that if they found an absolute assignment, they were bound for that reason alone to render a verdict for the defendant, was certainly all, if nót more, which the defendant could ask.

The judgment and order should be affirmed with costs.

Speib, J., concurred.  