
    (86 Hun, 15.)
    FLOUR CITY NAT. BANK OF ROCHESTER v. McKAY.
    (Supreme Court, General Term, Fifth Department.
    April 12, 1895.)
    Negotiable Instruments—Payment—Evidence.
    In an action on a note, one G. testified that the note was made for his accommodation by defendant, and that he delivered it to plaintiff bank, by which it was credited to his (G.’s) account; that he afterwards became insolvent, and agreed with plaintiff’s president and attorney to transfer to plaintiff certain property owned by himself, and other property which he owned jointly with defendant, on condition that plaintiff would surrender certain notes which it held as collateral security for his indebtedness, particularly mentioning the note sued on; and that the property was transferred accordingly, but the note was not surrendered! Defendant testified that G. informed him of the arrangement before he executed the transfer of the joint property to the bank. The testimony of defendant and G. was in some degree corroborated by other facts in evidence. The president and attorney of the bank with whom the arrangement was claimed to have been made testified that they had no recollection of it. Held, that the evidence was sufficient to sustain a verdict for defendant.
    Appeal from circuit court, Monroe county.
    Action by the Flour City National Bank of Rochester against George McKay to recover a balance alleged to be due on a promissory note. 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, plaintiff appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS and BRADLEY, JJ.
    George F. Youman, for appellant.
    Walter S. Hubbell, for respondent;
   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 mailing 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 solely; 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 transfer 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 a 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 defendant, in 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.  