
    William Romer, Resp’t, v. James C. Mix, Impl’d, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    Bills and notes—Consideration.
    In an action upon a promissory note brought by a bona fide holder, where the answer admits the giving of the note, but alleges that it was given to renew another note, but that the old note vas not delivered up, and there is no proof that the old note was not paid thereby, the defense of want of consideration fails and a judgment in favor of the plaintiff will, be sustained.
    Appeal from judgment in favor of plaintiff, entered on the decision of the trial justice, a jury trial having been waived.
    Action upon a promissory note made by defendant Romer.
    
      Edgar A. Montfort, for app’lt; William Romer, resp’t in person.
   Barnard, P. J.

This action is brought to recover upon a note of fifty dollars dated 22d April, 1890, and given to run two-months, with interest. The note was given to the defendant Carpenter, and by him transferred before maturity to the plaintiff for value, which was protested when it became due. The answer of defendant Mix admits the giving of the note; that it was given to renew another note for the same amount, but that the old note was not delivered up. The answer further avers as a defense that the first note was one of a series given by Mix to one Hub-bell under an agreement as to a patent right, and that Hubbell cheated him, Mix, in the transaction, and that the defendant Carpenter knew of Hubbell’s fraudulent representation in respect to the patent agreement. When the case came to trial it appeared that the note was $49.75. It appeared that it was given to renew another note held by Carpenter for $48.49. There was no proof given that the first note was not paid thereby. There is only an inference that it was not returned. That fact is stated in the answer, and the evidence is silent on the subject. The evidence as to representations made by Carpenter to defendant Mix was properly rejected. The note and its consideration and delivery were admitted. The agreement between Mix and Hubbell was admitted, but there was no attempt to connect Carpenter with it; no proof that Hubbell made fraudulent representations or that Carpenter knew of such representations being made. Ho defense was proven against Carpenter if he had been the plaintiff. The plaintiff Bomer proved that he paid the full face of the note, before it matured, in cash, and there was no contradiction made to this proof. The defense of want of consideration against Carpenter failed on the trial.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.  