
    The American Boiler Company, Respondent, v. Charles F. Fontham, Appellant.
    
      An order which teas not an accepted MU of exchange—defenses between maker and acceptor available to the acceptor against the payee —proof that the acceptor had . set up, in another action by Hie maker, the acceptance of the order, does not estab-lish an estoppel.
    
    An instrument in the following form:
    “New York, July%0, 1895, .
    “ Charles F. Fontham,
    “105 West 95th St., City:
    “ Dear Sir.— Please pay to the American Boiler Company, No. 94 Center street, city, the sum of One hundred eighty-seven and 15/100 ($187.15) dollars, and charge the same to my account on heating contract at 64 West 99th street, and oblige, “Yours respectfully,
    “H. J. APGAR.
    “Accepted, and I. agree to pay the sum specified herein within sixty days from date. ‘ ‘ CHARLES F. FONTHAM,
    “105 West 95th.” is a mere order on a fund and is not an accepted bill of exchange, and in an action brought thereon by the payee against the acceptor, the latter has the right to show that there was nothing due under the heating contract to the drawer of the order.
    The fact, that, in an action upon the heating -contract, brought by the drawer of the order against Fontham, for moneys alleged to be due thereunder, Fontham set up the acceptance of this order as a payment is not sufficient to establish a right on the part of the American Boiler Company to recover upon such instrument, unless it is made to appear that in that action this sum had actually been charged as a payment on account of a sum which had been found due to-the drawer of the order under the. heating contract.
    Appeal by the defendant, Charles F. Fontham, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of March, 1898, upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 16th day of March, 1898, and entered in said clerk’s office, denying the defendant’s motion for a new trial made- upon the minutes.
    The action was brought to recover upon the following instrument:
    “New York, July 20, 1895.
    “ Charles F. Fontham,
    “ 105 West 95th St., City:
    “ Dear Sir.— Please pay to the American Boiler Company, No. 94 Center Street, city, the sum of One hundred eighty-seven and 15/100 ($187.15) dollars, and charge the same to my account on heating contract at 64 West 99th street, and oblige,
    “Yours respectfully,
    “H. J. APGAR.
    “ Accepted, and I agree to pay the sum specified herein within sixty days from date. CHARLES F. FONTHAM,
    '“105 West 95th.”
    
      Thomas Stevenson, for the appellant.
    
      Franklin Pierce, for the respondent.
   Van Brunt, P. J.:

We think that the learned court below erred in treating the paper referred to in the complaint as an accepted bill of exchange. It had none of the elements of a bill of exchange, and showed upon its face that it was a mere order to pay money out of the sums which might become due to the drawer of the order on á-heating contract which lie had with the acceptor of the order. This evidently was ■ the theory upon which the action was brought, the plaintiff having alleged that moneys had become due under the contract, and that the order was drawn.against the same and accepted by the defendant, there being no other consideration for the defendant’s promise. This being the case, the defendant clearly had the right to show that' there was nothing due under the contract to the person who had drawn the order. All the defenses which existed between the drawer of the order and the defendant were-available.upon an action to enforce what is simply an assignment of a portion of the moneys which might become due under the contract.

The allegation in the complaint, that in an action brought by. the drawer .of the order against the defendant upon the contract for moneys alleged to be due thereunder, the defendant set up the acceptance of this order as a payment, was incomplete unless it was made to appear that in that action this sum had- actually been charged as a payment on account of a sum which had been found, due to the drawer of the order under the contract.

The cases of Gibson v. Lenane (94 N. Y. 183) and McCorkle v. Herrman (117 id. 297) in no way conflict with this view. All that they hold is that an order of this kind must, as between the parties to the contract, be treated as a payment on account of what is found to be due under the contract. Of. course' if there is nothing due upon the contract, then there is no fund against which the order can be charged. The defendant in this ease had a right to prove that the drawer of the order had failed to perform his agreement and that nothing had become due to him under the contract.

The judgment and order appealed from'should be reversed and a new trial ordered, with costs to appellant to abide event.

Patterson, O’Brien, Ingraham and McLaughlin, JJ,, concurred.

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