
    John Howard, Resp’t, v. John A. Moller, App’lt.
    
      (New York City Court, General Term,
    
    
      Filed June 20, 1894.)
    
    Appeal—Conflicting evidence.
    In an action on a note, the question of actual consideration, where the evidence is conflicting and the plaintiff is not a bona fide holder before maturity, should be submitted to the jury.
    Appeal from judgment entered on a verdict, by direction of the court and from an order denying a new trial.
    
      Johnston & Johnston, for app’lt; John R. Farrar, for resp’t.
   Conlan, J.

This action was commenced against the defendant as maker of a promissory note. The complaint alleges the making of the note payable to Russell Brothers before maturity and for value, also demand, and. non-payment by the maker. The answer denies the.making of the note as alleged and its ownership for value, by the plaintiff, and alleges that the note was made to one Michael McMunn who was doing business as Russell Brothers as an accommodation and to enable him to gain an extension of credit where be was then indebted, and upon a promise by said McMunn, who was the Russell Brothers named as payees in the note, that he would, in about a week, return said note to defendant and that the plaintiff had knowledge of this undertaking. The evidence of the plaintiff is as follows: “I had no interest in nor did I become the owner of this note until after it was protested.” The evidence of the defendant is to the effect that the note in question was one of a series of three notes made about February 20 th, of same year, to the order of Bussell Brothers, payable in two, three and four months, the note in suit being the last of said series. That he was induced to make said notes for the accommodation of the said McMunn; that at the same time the said McMunn executed a receipt to the effect that the notes in question were for rent of a portion of premises Kos. 149,151 and 153 Leonard street. The defendant testified: “ The rent was to be paid with the work I should receive from McMunn as far as those notes were concerned, I did not agree to pay it with these notes.” I only loaned him the notes and he put them for rent/1 We agreed that the rent should be paid in work.” The testimony of the defendant is somewhat confusing and contradictory, but we think the question of actual consideration, the plaintiff not being a bona fide holder before maturity should have been submitted to the jury. I am of the opinion that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Hewbubgeb and Fitzsimons, JJ., concur.  