
    Henry Copans, Appellant, v. Arthur T. Dougan et al., Respondents, Impleaded with Another.
    
      Copans v. Dougan, 158 App. Div. 896, reversed.
    (Argued March 6, 1916;
    decided March 21, 1916.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 31, 1913, affirming a judgment in favor of defendants entered upon a verdict in an action to recover upon a promissory note. The answer admits the making and indorsement of the note and that it was intended that defendant Catherine L. Dougan should be the first indorser thereon, and for a further defense alleges that the note was made and executed for the purpose of securing to the defendant Cronk $200 on account of the purchase price of a house and lot which defendant Cronk sold and conveyed to defendant Arthur T. Dougan, and that prior to the execution of the note the defendant Dougan had purchased goods for defendant Oronk which were delivered to the latter and Dougan had guaranteed the account, and that at the time of the execution and delivery of the note it was agreed between the parties that defendant Oronk would hold the note and if there was any balance due from him for the goods sold to him by defendant Arthur T. Dougan the same should be deducted from the note; that the plaintiff was present at the time of the execution and delivery of the note and was fully informed as to the agreement in regard thereto and was not an innocent bonaficle holder of said note for value; that at the time the note became due there was due from defendant Oronk to the defendant Dougan a sum in excess of the amount of the note.
    
      Henry Hirschberg for appellant.
    
      A. H. F. Seeger for respondents.
   Judgment reversed, new trial granted, costs to abide event, on dissenting opinion of Burr, J., below.

Concur: Willard Bartlett, Ch. J., Hiscock, Chase, Cardozo and Pound, JJ. Dissenting: Cuddeback and Hogan, JJ.  