
    Joseph S. Cohn, and others, as Adm’rs of Henry S. Cohn, Resp’ts, v. Joseph Husson, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 4, 1887.)
    
    1. Bills and notes—Exchange notes—Action on.
    Each party upon an exchange of notes is bound to pay his own, neither to have vitality as against the other unless so respectively paid, and when the administrators of 0. have taken up the notes given by him, an action is properly brought on a note of H., given in exchange for one of them.
    2. Same—Practice evidence—Proving course op dealing.
    Notes that the parties had exchanged with each other were properly admitted to show the course of dealing between them. In proving a course of dealing between parties it is discretionary with the court to say how far back the proof shall go, as long as all the evidence is of the same character.
    3. Same—Answer to question by witness—Refusal of court to strike out—Remedy.
    When f£n improper answer, which might have been properly stricken out was not, the remedy of the injured party is to ask that the jury be instructed to disregard the evidence.
    
      Abraham Kling, for resp’ts; Edward P. Wilder, for appl’t.
   Daly, J.

The action was brought upon a promissory note for $750, dated December 11, 1878, made by Joseph Husson, the defendant, to the order of Henry S. Cohn, Plaintiff’s intestate, payable five months after date at the Brooklyn Bank in the city of Brooklyn.

It was an exchange note; Cohn having made and delivered to Husson ms own note of the same date and amount, which Husson used, having it discounted by George B. Ripley & Co., and which, after it fell due and was protested, was taken up by the administrator of Cohn, with two other notes of his which had also been discounted for Husson by Ripley & Co., all three aggregating $2,200. Cohn, in his lifetime, had paid $1,700 to Ripley & Co. on account of the three notes, and after his death A. B. Cohn, one of his administrators, gave his own note to the holders for the balance and received the notes for the estate. This gave the administrators the right to recover upon the notes of Husson which had been given to Cohn in exchange for the latter’s notes thus paid and taken up by him and by his estate. Bach party, upon an exchange of notes, is bound to pay his own, and this action is properly brought upon defendant’s note. Wooster v. Jenkins, 3 Den., 187.

The answer sets up the agreement which the law implies, viz.: That each was to pay his own note, and that neither (note) was to have vitality as against the other unless so respectively paid.. The defense pleaded was that Ripley & Co. were still the holders of Cohn’s note, but on the trial it was shown they had been paid as above stated, and that his administrators held them, and the defense, therefore, failed.

It is urged, however, on this appeal that plaintiffs should not recover because the said three notes of defendant are set forth in the inventory of the estate of Cohn as “accommodation” notes, which represent the amount of $1,700 paid by deceased; also that the administrators, in making personal demand of payment of defendant before action, did not claim upon defendant’s three notes, but the notes of their intestate which they had taken up, and that the plaintiffs, on the trial, claimed to recover on such notes; and the argument is that those notes were discounted by Ripley for. Cohn’s benefit, and not for defendant’s, and, therefore, that defendant’s notes given in exchange for them never became legal obligations.

All the elaborate speculation on this point in appellant’s brief, goes for naught, however, in the fact of defendants admission in his answer, that he used the plaintiff’s intestate’s notes, and transferred the same to George B. Ripley & Co., and his statement on the trial that he got the money on them.

It is also urged that neither Cohn nor his administrators had the right to take up his notes, as Husson might have a good defense upon his endorsement as against Ripley & Co., who had it is alleged discounted them usuriously for less than their face. As an exchanged note is given for value, and may be sold for any sum less than its face there is no force in this objection. Wooster v. Jenkins, above cited.

The further objection is made that the administrators can recover on the notes of defendant no more in the aggregate than the $1,700 paid by Cohn on taking up his own notes: and that as they have already obtained judgment in another action upon another note for $750, the balance should be be apportioned in some way upon the note in suit, and the other unpaid note still held by them.

The payment by the administrators of the difference between the $1,700 and the $2,200 which the notes aggregated, although such payment was by a note of one of them accepted by Ripley & Co., must be taken into account the same as a cash payment, the presumption being that the maker of the note is solvent and will pay. But if it were not to be so considered, the recovery on the note in suit here, together with that in the former action, does not appear to be greater than the $1,700 cash paid by Cohn, and the defendant is not yet compelled to pay more upon his own notes than Cohn was compelled to pay upon his. There is, however, no force in the objection.

The defendant set up in his answer as a counter-claim, a note made by Cohn on August 11, 1879, for fifty dollars, payable two months after date to the order of Joseph Hus-son. The plaintiffs in their reply alleged that the said note had no legal inception, and was one of a series of notes given to the defendant without consideration and purely for his accommodation.

The chief contention upon the trial was upon this issue, and the principal exceptions taken by defendant were to rulings upon evidence with regard to it.

The allegation of the reply that the note set up in the counter-claim was given for defendant’s accommodation was amply proved. The plaintiffs put in evidence a note of defendant for the same amount, dated the same day, and payable at the same time to the order of their intestate.

It was to be inferred from the two obligations that they were exchanged one for the other. The fact that notes were in defendant’s possession at the time of the trial is claimed to be evidence that his own note was taken up and paid by defendant after it had been used and discounted by Conn, while Cohn had not paid his note on which the counter-claim is based, and that the latter is, therefore, established as a valid obligation in defendant’s hands.

To this it is a sufficient answer to say that defendant, although he went upon the stand as a witness in his own behalf, and testified, did not attempt to show that he had taken up and paid his own note, nor that Cohn had used and discounted it, and the presumptions from his possession of it are destroyed by this silence and his admissions.

These admissions, as testified to by one of the administrators, and by Horace Ripley, of Ripley & Co., respectively were as follows: When Ripley & Co. held the notes above referred to as discounted by them, the defendant told Horace Ripley that he intended to pay the notes, and never at any time made any claim that Cohn owed him; and after the administrators had taken up the notes, A. B. Cohn, one of the administrators, went to him for payment, and he stated that he would pay them, that Cohn had nothing to do with them and he never made any claim that he held any note against the estate, nor made any claim of any kind; but stated that the deceased loaned him his notes frequently when he wanted them, and that he got them discounted, and that,the estate had nothing to do with paying them; he would settle with Ripley.

It was also shown by the introduction of a number of notes on both sides that the deceased and Husson had exchanged notes frequently up to the time of the death of the former. Objection was made to the introduction of these notes on the part of plaintiffs, but they were properly admitted to show the course of dealing between the parties, and did not mislead the jury. In fact, as defendant produced a greater number of such notes than plaintiffs did, the real danger lay in their possibly deeming that the ballance of indebtedness was against plaintiffs’ intestate, and finding accordingly. They found on the contraiy for plaintiffs on the counterclaim, a result which was justified by the admission of defendant tacit and other, and by the production of the duplicate or exchange note of August 11, 1879, to which I have already referred.

All exceptions to the admission of these notes, and of admissions of defendant concerning them, and of the claim he made or did not make concerning them, are not well taken. The evidence was material.

The court excluded two notes offered by defendant as too remote to bear upon the issues, because they were made in 1877, and the note counterclaimed was made in August, 1879. This, was not error. The defendant had proved a larger number of notes than plaintiff had, so that these were not essential to show a balance in his favor, and they had no relation whatever to the counterclaim. In proving the course of dealing between the parties, it was discretionary with the court to say how far back the proof should go, as long as all the evidence was of the same character.

The exclusion of the mutilated note of the plaintiff’s intestate did no injury to the defendant, because, as has been said, the notes admitted showed a balance in his favor, and he had all the benefit of any inference from that fact. The exclusion of defendant’s check, paid in taking up some note of the intestate which had not been proved, was not error.

The last exception remaining to be considered is that taken by defendants to the refusal to strike out the answer of the witness to the question, “What became of the other two notes which are mentioned in this inventory?” The question was objected to, but the objection was overruled, because the interrogatory was not improper and did not ° call for incompetent testimony. The answer: “On one of them suit was brought and judgment recovered about four weeks ago, and the money was paid up on it; the other one is in suit still, and the third one is here,” was, however, improper, and might have been stricken out with propriety when the motion was made.

I think it was not error, however, for the court to refuse to do so, the remedy of the injured party in such a case being to ask for instructions to the jury to disregard the evidence. Platner v. Platner, 78 N. Y., 101.

The jury had ample evidence before them upon which to find a verdict in the plaintiff’s favor—evidence which is satisfactory and convincing, and the verdict should not be disturbed.-

The judgment and order appealed from should be affirmed, with costs.

Larremore, Ch. J., and Allen, J., concur.  