
    WOODWORTH, Respondent, v. McGUIRE, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    March 18, 1914.)
    Action by Mary M. Woodworth against John J. McGuire.
   PER CURIAM.

Judgment and order reversed, and new trial granted, with costs to appellant to abide event. Held: (1) That there was not sufficient evidence to justify a finding by the jury that the defendant acknowledged an indebtedness to the plaintiff and promised in writing to pay the same. (2) That under the proof and circumstances of the case the defendant was entitled to have the jury instructed as requested, “That if the jury find that the $25 check was not a payment upon his indebtedness, the plaintiff cannot recover,” and that the exception taken to the refusal of the court to so charge presents a reversible error.  