
    The Carbonating Apparatus Company, Appellant, v. Myron F. Geary, Respondent.
    Second Department,
    November 22, 1907.
    Bills and notes — failure to prove fraud of payee and failure of consideration.
    The defense that promissory notes given in payment of a soda water fountain were obtained by false and fraudulent representation is not-established where it appears that the defendant used the fountain for more than a year after obtaining it and had already paid several notes given in payment.
    In such action a failure of consideration is not prayed when it is shown that the seller allowed and the defendant accepted a deduction from the price to cover-alleged defects, and that thereafter he continued to use the fountain and gave notes in payment.
    Appeal by the plaintiff, The Carbonating Apparatus Company, from a judgment of the Municipal Court of the'city of Hew York, borough of Brooklyn, in favor of the defendant,. entered upon the decision of the court after a trial without a jury, dismissing the complaint.
    
      John C. Judge, for the appellant.
    
      Sutherland. B. Haxtun, for the respondent.
   Woodward, J.:

This action was brought to recover the sum ■ of seventy-two dollars, with interest, upon four promissory notes given by the defendant to the plaintiff. Upon the trial the plaintiff. produced the notes and certificate of protest, and proved that there was due upon them' with interest and protest fees, the sum of eighty-five dollars and thirty-three cents. This amount was. hot controverted, by * the defendant, and stands admitted. The further proof showed that the plaintiff had delivered to the defendant a soda fountain, to be paid for by installments, for which the .notes in suit, among others, had been given, and that at the time of the trial the soda fountain was still in possession of the defendant. •

The defendant, while admitting the making of the notes, alleged in his answer that the notes had been obtained by false and fraudulent representation. This, however, he fails to prove, for it is shown hy the evidence that he not Only used the fountain for more than one year after obtaining it, but that he also had successively paid various notes on the same. Mor is the alleged failure of consideration proved. A deduction of twenty dollars was made to the defendant to cover some alleged defects; and as the defendant admits that he continued to use the fountain and that he' received and accepted the deduction as an adjustment, it is evident that he assumed, by the making of the notes, the obligation which devolves upon a maker of negotiable instruments. The dismissal of the complaint was. error, and the judgment .of the Municipal Court should be reversed and a new trial ordered.

Hirsohberg, P. J., Jerks, Gayror. and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  