
    Stillwell v. Archer et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    May 9, 1892.)
    1. Trial—Right to Open and Close.
    In an action on a joint bond of husband and wife; the defense of the wife was that the bond .was not given for the benefit of her separate business, want of consideration, nondelivery to plaintiff, usury, fraud in its procurement, and that plaintiff had accepted the note of the husband in satisfaction of the bond. Held, the burden being, on plaintiff to show delivery and consideration of the bond, that the court erred in giving defendants the affirmative of the issue.
    3. Same—Evidence.
    There was testimony that plaintiff’s husband accepted the note of defendant’s husband in satisfaction of the bond, which was given for money borrowed to improve the land of the wife; also testimony tending to show usury in the bond. Plaintiff denied the usury and the authority of her husband to take the note in payment of the bond. Held, that the court erred in directing a verdict for defendants.
    Appeal from circuit court, Westchester county.
    Action by Celia Stillwell against Hannah E. Archer and another. From a judgment for defendants, plaintiff appeals.
    Reversed.
    Argued before Barnard, P. J., and Pratt, J.
    
      Norman A. Lawlor, for appellant. Chauncey Shafer, for respondents.
   Barnard, P. J.

The plaintiff had the affirmative of the issue under the pleadings. The action is upon a joint bond executed by Eugene Archer and Hannah E. Archer to the plaintiff to secure the payment of $1,000. The defendant Hannah E. Archer answers that she is a married woman, and that the bond was not given for her separate business; that there was no consideration for it; and that it was never delivered to the plaintiff. The answer sets up additional affirmative defense that the bond was obtained by fraud and was usurious, and that the plaintiff accepted the note of Eugene Archer in payment and satisfaction of the bond. The plaintiff, upon this state of the pleadings, could not take judgment without proof of the delivery and consideration of the bond. The defendant had the affirmative of the issue given to her. She was then sworn, and testified that she signed the bond at the request of her husband, and that nothing was said by him to his wife as to the purpose or consideration of the bond which accompanied a mortgage upon Mrs. Hannah E. Archer’s separate property; that it had been talked of between the husband and wife that $1,000 was to be borrowed to improve Mrs. Archer’s place. Proof was given by Eugene Archer that he negotiated for the money with Stephen J. Stillwell, his nephew, and upon an agreement that he and Eugene Archer would use the money as partners in buying and selling stocks. The money loaned belonged to the plaintiff. Stillwell soon after this married her. Proof was given by defendant Mrs. Archer tending to show usury, and that Stephen J. Stillwell owed Eugene Archer profits on stock bought and sold, and that Eugene Archer’s note was given for $1,000, at two years’ credit, in satisfaction of plaintiff’s note. The plaintiff testified that she gave a check for $1,000, and received the bond and mortgage; that she never knew of any stock speculation; that there was no usury; that she never authorized her husband to take Eugene Archer’s note for her mortgage. The case went to the jury, and they failed to agree; whereupon the court directed a judgment for the defendants. The plaintiff is entitled to a new trial, on'the ground that the affirmative of the issue was with the plaintiff, (Millerd v. Thorn, 56 N. Y. 402,) and also upon the ground that the proof did not justify a direction of a judgment for the defendants. The plaintiff lent the money, and there was nothing proven beyond question which destroyed her mortgage. The judgment should be reversed, and a new trial granted, costs to abide event.  