
    Mary Barker Pareira, Resp't, v. Roderick H. Smith, App'lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 3, 1893.)
    
    Money loaned—Evidence—Right to sum up.
    In an action for money loaned, plaintiff relied on an instrument written upon a letter heading of the New York Stock Trust, of which defendant was an officer, in the form of a receipt for money, to be repaid on a certain day, and signed by defendant. The court excluded evidence offered by defendant to show that he did not receive the money, but that it was loaned to the stock trust, and also declined to permit counsel for defendant to sum up to the jury, saying there was only a simple question of fact for them. Held, that the judgment in favor of plaintiff should be reversed.
    Appeal from judgment of the general term of the city court of New York, which affirms a judgment for plaintiff entered upon a verdict in her favor; and from an order denying defendant’s motion for a new trial on the minutes.
    Action to recover for moneys alleged to have been loaned by plaintiff to defendant. The defenses were a general denial and that the loan ivas not made to defendant, but to a third person through defendant as the medium.
    
      Adolph L. Sanger, for resp’t; Theron G. Strong, for app’lt.
   Bischoff, J.

To substantiate her claim of a loan to defendant plaintiff gave in evidence the following instrument:

“American Loan & Trust Company,
“ Registrar of the Certificates,
“New York Stock Trust,
“6 Wall Street.
“ Trustees:
“ Roderick H. Smith,
Manager.
“Geo. Condit Smith,
Secretary.
“George F. Shaver.
“New York, December 10, 1890.
“ Received from Mrs. M. Barker Fareira, as a loan, one thousand dollars, to be returned January 1, 1891.
“ Roderick H. Smith.”

and the trial court excluded oral evidence, offered by defendant, which tended to show that the sum mentioned was never received by him, and was in fact loaned to the New York Stock Trust, on the ground that the evidence excluded varied the legal effect of a written instrument; to which defendant’s counsel duly excepted.

The exception was well taken and the judgment and order appealed from si i ould, therefore, be reversed. In De Lavalette v. Wendt, 75 N. Y., 579, the instrument was as follows: “New York, November, 3, ’66, $500. Received from B. M. Peyser five hundred dollars, due on demand.” It was held that the instrument did not sufficiently name a payee, bearer or otherwise, that the effect of the omission was to render the instrument a mere receipt of the payment of money, and as such open to explanation by parol evidence. Edwards on Bills and Promissory Notes, 131, star paging; Union Trust Co. of N. Y. v. Whiton, 97 N. Y., 172. As the instrument in the case at bar is essentially identical, except as to the time of payment, with the one in De Lavalette v. Wendt, there is no escape from the conclusion that the court below erred in excluding the evidence referred to.

Waiving the defect, however, and viewing the instrument sufficient for the purposes of a promissory note it was, nevertheless, ■competent, as between the parties and their privies with notice, to show a failure of consideration, and this by parol evidence. Rice on Evidence, vol. 1, p. 274; vol. 2, p. 1137; Randolph on Negotiable Instruments, § 565; Bookstaver v. Jayne, 60 N. Y., 146; Isaacs v. Jacobs, 15 Daly, 490; 29 St. Rep., 145; Homestead Bank v. Wood, 48 St. Rep., 775; Julliard v. Chaffee, 92 N. Y., 529, 535. That an instrument recites the receipt of a consideration at most clothes it with the dual character of contract and receipt. As the latter, it is but, prima facie evidence of the fact and open to rebuttal by oral proof. Meyer v. Peck, 28 N. Y., 590; Abbe v. Eaton, 51 id., 410; Van Etten v. Newton, 15 Daly, 538, 543; 25 St. Rep., 751; 29 id., 411.

Other exceptions of gravity appear in the record, but as the one discussed requires reversal, we refrain from specially noticing those remaining, as the alleged error thereby presented may not again occur.

Judgment and order reversed and new trial ordered, with the costs of this appeal to the appellant to abide the event.

Pryor, J.—On perusal of the record the inference is unavoidable that the court declined to permit counsel for the defendant to sum up to the jury on the issue submitted to their determination.

After passing upon a motion by plaintiff’s counsel for the direction of a verdict, the court immediately proceeded to charge the jury; and at the earliest moment possible without an indecent interruption, counsel for defendant asked: “ Are we not to have an opportunity to sum up the case?” to which the court responded : “ No summing up was necessary, * * * inasmuch as there was but one simple question of fact for the jury.”

Be the issue simple or complex, counsel have a legal right to be heard upon it before the jury. If the court may deny the privilege upon the assumption that the case is too plain for argument, then the exercise of the.privilege stands not upon legal right, but upon the misconception, or caprice, or arbitrary volition of the court. To this proposition I cannot assent. The dictum in its support, People v. Cook, 8 N. Y., 67, 77, is of no authority; and is repugnant alike to the rights of litigante and the duty of counsel. 2 Rumsey’s Pr., 804; Douglass v. Hill, 29 Kansas, 527, per Brewer, J.; Garrison v. Wilcoxson, 11 Ga., 154.

Upon this ground I concur in the reversal of the judgment.  