
    Herman S. Mendelson, Resp’t, v. Lucius T. Sheffield, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed March 2, 1891.)
    
    1. Bills akd rotes—Evidence.
    In an action upon a promissory note, brought by an endorsee thereof, where the defense is that it was procured from the maker' by fraudulent representations, it is not error to exclude a question put to the payee as a witness whether he had any of the notes against defendant except the one in suit, as such question is immaterial and does not tend to show that the note in suit was procured by. false representations.
    3. Same—Fraud—Burder of proof.
    Where the only evidence that the note was procured by fraud is the testimony of the defendant himself, the plaintiff is not bound to prove that he had no notice or knowledge of the fraud, but it is a question for the jury as to how much or what credence should be given to the defendant’s testimony.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.
    The action was brought to recover on three promissory notes made by the defendant to the order of one H A. Parr, and by said Parr endorsed and delivered after maturity to the plaintiff.
    The answer set up as a defence that the notes were obtained by said Parr from the defendant by means of certain false and fraudulent representations.
    
      W. D. Edmonds, for app’lt; Fullerton & Rushmore, for resp’t.
   Truax, J.

The case is so poorly prepared that it is difficult to tell what exceptions were taken by the appellant. It contains exceptions taken by the plaintiff, exceptions by the defendant, and “ exceptions.”

It was not error for the trial judge to sustain the objection to • the question asked the witness Parr: “.Have you any of the notes against him (the defendant) except those that are in suit?” The question was immaterial and neither showed nor tended to show that the notes in suit were obtained by means of false and fraudulent representations.

The defendant was put on the stand and testified that “ he (Parr) always reported that he was trying to do all he could but he never got any evidence. I believe implicitly that he was doing all he could.”

This was stricken out, and the defendant excepted.

I infer that the last sentence is that portion of the answer that was stricken out, because the first sentence is responsive to the question that was asked while the last is not. It was rightly stricken -out also because the belief of the defendant was immaterial.

The next alleged error to which our attention has been called is the ruling of the court in sustaining an objection to the question asked the defendant: “ Tell me as far as you can recollect, what statements were made to you during this period by Dr. Parr in reference to the services which he was rendering under this sixty dollars a week arrangement ?”

It is true that this question was ruled out, but subsequently the witness was asked: “ I don’t want your belief, but what he said to you; the substance of it,’’and this was allowed and the witness gave the statements that were made to him by Dr. Parr.

Certain conclusions and statements made by the defendant, statements not responsive to questions asked, were stricken out, and the defendant excepted.

The rulings of the court were not erroneous. Many of the answers stricken out had nothing whatever to do with the case.

At the close of the case, the defendant moved to dismiss the complaint and for judgment, on the ground that the plaintiff had failed to adduce testimony sufficient to entitle him to a judgment, in view of the defendant's testimony.

The claim of the defendant is that he had adduced evidence showing that the notes in suit were obtained from him by fraud, and that plaintiff, being a subsequent transferee of these notes, was bound to prove that he had no notice or knowledge of the alleged -fraud. But even if the defendant had adduced evidence showing that the notes were obtained from him by fraud, this evidence was testimony given by himself, and as he was an interested witness, it still was a question for the jury to say how much or what credence they should give to his testimony.

I am also of the opinion that the testimony was not sufficient to warrant the jury in finding that the notes were obtained by fraud.

The defendant requested the court to charge: “ That the defendant having inserted into this case proof of fraud, the burden •of proof shifts, and is upon the plaintiff to overcome that testi.mony as to fraud.”

The court refused to charge except as it had already charged, ■and the defendant duly excepted.

The court had already, in substance, charged that if any of the anotes were obtained from the defendant by means of the false and fraudulent representations of the payee (Parr) they must find for the defendant as to the note or notes. This was as favorable for 'the defendant as he had a right to ask, and the court was not bound to go over it again, or to charge it in the exact words proposed by the defendant’s counsel.

Judgment and order appealed from are affirmed, with costs.

Sedgwick, Ch. J., concurs.  