
    NORTHRUP, Respondent, v. HEALY, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    October 27, 1903.)
    Action by Charles R. Northrup against Henry H. Healy.
   PER CURIAM.

Judgment and order reversed, and new trial ordered, with costs to appellant to abide event, upon questions of law only; the facts having been examined and no error found therein. Held, that the trial court committed error prejudicial to the defendant in refusing to charge, at the request of his counsel, that if Mr. Barnum, the attorney for the plaintiff, advised the defendant, in the presence of the plaintiff, to give up the note in suit to Mr. Tilley, the maker thereof, and the plaintiff did not object thereto, but remained silent, the jury might find the cause of his failure to speak or protest against such advice, that he was estopped from questioning the subsequent surrender of said note to Tilley by the defendant.

WILLIAMS, J., dissents. STOVER, J., not voting.  