
    HERBERT B. FREEMAN, Plaintiff and Respondent, v. JOHN M. FALCONER, Defendant and Appellant.
    I. Re-abgument.
    1. WHEN ORDERED.
    
      (a) When the former decision is based in part on a decided case, which has subsequently been reversed by the court of appeals.
    
    
      Curtis, Ch. J., Sedgwick and Freedman, JJ.
    
      Decided March 3, 1879.
    Motion by appellant for a re-argument of the appeal herein.
    
      Abner O. Thomas, for appellant.
    
      O. F. Wells, for respondent.
    
      
       Note.—For the opinion delivered on the first argument, see ante, p. 132.
    
   By the Court.—Curtis, Ch. J.

The defendant is sued as one of the makers of two promissory notes by the indorsee. The defense is, that the payees of the notes own them, and that they are the real parties in interest and not the plaintiff, and that his possession of them is merely as their agent to collect them and remit the proceeds. At the trial the defendant offered to show this, but it was excluded by the court, and there was a verdict for the plaintiff.

The defendant appealed from the judgment entered upon the verdict and from the order denying a motion for a new trial. The judgment and order were affirmed upon appeal. The opinion of the court to some extent rested upon the decision of Hayes v. Southgate (10 Hun, 511). Since then, the latter case has been before the court of appeals and reversed (18 Alb. L. J. 318). In view of this and of the decision in Taylor v. Sarget (6 Weekly Dig.), the appellant’s motion should be granted.

Sedgwick and Freedman, JJ., concurred.  