
    Ingle Carpenter, Respondent, v. Minnie L. Cummings, Appellant.
    (City Court of New York, General Term,
    July, 1897.)
    Note taken by attorney in order to sue upon it — Parol evidence.
    Where an attorney sues as assignee, under a written instrument, of the indorsee of the payee of a note, made by the' defendant, the latter is entitled to make proof of a defense interposed by her, under section 73 of the Code of Civil Procedure, that the attorney, in violation of that section, bought or was interested in buying the note, with the intent and for the purpose of bringing an action upon it, as the defense, if proved, would compel a verdict for the defendant,
    Appeal by defendant from judgment on verdict directed for plaintiff, and order denying new trial.
    L. J. Morrison, for appellant.
    Philip Carpenter, for respondent.
   Van Wyck, Ch. J.

The plaintiff, an attorney and counselor, sues as the assignee, by written assignment from the indorsee of the payee of the note made by defendant, and .one of defendant’s alleged defenses was, that plaintiff, in violation of section 73 of the Code, bought, or was interested in buying, the note with the intent and for the purpose of bringing an action thereon. If the plaintiff did. so purchase the note.or was so interested in its purchase, and defendant had made any proof which tended to show that plaintiff had so done, a question would have been raised which should go to the jury for determination. But defendant was, by a number of adverse' rulings, to which exception was duly taken, prevented from making such proof, and for these errors alone, the judgment must be reversed. Such alleged defense, if. prqven at trial, to the satisfaction of the jury, must compel a verdict for defendant. Browning v. Marvin, 100 N. Y. 144. Judgment and order reversed -and new trial granted, with costs to appellant to abide the event.

McCarthy, J., concurs.

Judgment-and order reversed and new trial granted, with costs to appellant to abide the event.  