
    Vermont Marble Company, Appellant, v. Chas. M. Gray Marble and Slate Company, Respondent, Impleaded with Others.
    
      Vermont Marble Co. v. Gray Marble & Slate Co., 171 App. Div. 954, 955, affirmed.
    (Submitted October 25, 1918;
    decided November 12, 1918.)
    Appeal from a judgment of the Appellate Division of the Supreme Cpurt in the first judicial department, entered January 13, 1916, affirming a judgment in favor of defendant entered upon verdict directed "by the court, Also appeal from an order of the said Appellate Division, entered January 11, 1916, which affirmed an order of Special Term denying a motion to reopen the case. The complaint alleged a cause of action on a promissory note, made and delivered by the respondent Chas. M. Gray Marble and Slate Company, for value received, to the order of the defendant Feeney & Devanny Company, payable three months after date, and thereafter and before maturity, for value received, indorsed by Feeney & Devanny Company and Patrick H. Feeney and delivered to the plaintiff," appellant, which at maturity was unpaid and protested for non-payment. The answer of respondent Chas. M. Gray Marble and Slate Company, after making certain denials, sets up four separate defenses: (1) Payment; (2) payment to the Feeney & Devanny Company with appellant’s consent and authority; (3) that after the note was protested, appellant charged it back to the defendant Feeney & Devanny Company, and that in June, 1913, there was an áecounting had between appellant and Feeney & Devanny Company, whereby an agreed balance was struck, and found to be due appellant, which balance included certain protested notes, the note in suit, and an amount due for merchandise on an open account, and that appellant agreed to, and did, accept in payment and full settlement and discharge of said indebtedness three promissory notes made or indorséd by the Feeney & Devanny Company, and indorsed by defendant Patrick H. Feeney, all dated June 12, 1913, maturing in one, two and three months, respectively, from date; that it was agreed between the defendant Feeney & Devanny Company and appellant that the note in suit should form a part of the consideration of the three notes referred to, and that their acceptance should be in full payment, settlement, satisfaction and discharge of the note in suit, and other protested notes indorsed and delivered by the Feeney & Devanny Company to plaintiff and for merchandise due on open account. The defendants Feeney & Devanny Company and Patrick H. Feeney did not defend.
    
      Merritt E. Haviland for appellant.
    
      W. Bennett Marx for respondent.
   Judgment affirmed, with costs.. Appeal from order denying motion to reopen case dismissed, without costs; no opinion.

Concur: His cock, Ch. J., Chase, Collin, Cuddeback and Hogan, JJ. Not sitting: McLaughlin, J. Absent: Crane, J.  