
    Flour City National Bank of Rochester, App’lt, v. George McKay, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    Appeal — Verdict. .
    A verdict, on conflicting evidence, will not be disturbed on appeal, where the evidence is sufficient to sustain it.
    Appeal from a judgment, entered on a verdict in favor of defendant, and from an order denying a motion for a'new trial, made on the minutes.
    
      George F. Youman, for app’lt; Walter S. Hubbell, for resp’t.
   Lewis, J.

This action was brought to recover a balance claimed to be due on a promissory note for $1,500, made by the defendant on the 5th day of December, 1888, payable to the order of James J. Guthrie, and by him delivered to the plaintiff. The making and delivery of the note were admitted by the answer. The defense relied upon appears in the testimony of defendant and Mr. Guthrie.

The sole question presented by this appeal is whether the verdict, ■was so far against the weight of evidence that it should for that ■reason be set aside. Guthrie's testimony, if true, made out a defense. He testified that the note in suit was made by the defendant for his (Guthrie’s) accommodation soleljr; that he delivered it to the plaintiff bank; it was credited to his account at the bank upon a past indebtedness; that after his failure, by request, he met Mr. McHaughton, the attorney of the bank, and Mr. Hathaway,. its president; that they requested him to confess a judgment for the amount of his indebtedness to the bank, and to assign certain securities belonging to him, including a mortgage for $5,000, and also to trarisfer to the bank about 2,000 bushels of malt belonging to him and the defendant as copartners; that he told them that he would give them an assignment of the malt and of the $5,000 mortgage upon condition that the bank would surrender certain notes which it held as collateral security for his indebtedness to the bank; that he called attention particularly to the note in question, and insisted, as condition of making the transfer, that it should be surrendered; the subject of McKay’s financial standing was discussed; that it was stated that about all he had was the interest in this malt, and it was agreed that the mortgage and the malt should be transferred to the plaintiff, and in consideration thereof they would surrender the note -of defendant; that he did thereupon assign the mortgage and thereafter the defendantin whose name the title to the malt stood, transferred the malt to the plaintiff. McKay testified that he had learned from Guthrie, before executing the transfer of the malt, of the arrangement he had made with the bank in regard to surrendering the notes. The testimony tended to show that Guthrie had advanced most of the money for the purchase of the barley from which the malt was made. McKay, however, had put into it the sum of $474.68. The malting business had been done in his name. The plaintiff, after obtaining the mortgage and malt, refused to surrender the notes. The president of the bank and the attorney testified that they had no recollection of having agreed to surrender the McKay note; that no such agreement was made. Other facts appeared in evidence which tended in some degree to corroborate the testimony of Guthrie and McKay.-

The trial justice, who saw the witnesses and heard their testimony, was of the opinion that the verdict was not against the weight of evidence. After-an examination of the case, we incline to the same opinion. It follows that the judgment and order appealed from should be affirmed.

All concur.  