
    EDWARD K. RAUBITSCHEK, Plaintiff, v. JACOB BLANK, Defendant.
    l. Fraudulent representations.—Defense op, must be pleaded.
    1. CHECK SUED AS AGAINST MAKER BY A HOLDER AFTER DISHONOR.
    
      (a) Defense of fraudulent representation by the payee to the maker, must be pleaded.
    II. Real property.—Exchange op.
    1. STATUTE OF FRAUDS ; CONTRACT, SUFFICIENCY OF, UNDER.
    
      (d) A check signed by one of the parties, and a receipt given for the check, stating that the check was given on the exchange of properties, mentioning them, and stating the prices of the property, signed by the other party, constitutes a valid contract as against the party signing the receipt, and raises a sufficient consideration for the check.
    m. Check.
    1. Consideration, what is sufficient.
    
    See Real Property, supra.
    
    Before Speir and Freedman, JJ.
    
      Decided November 4, 1878.
    Exceptions heard at general term.
    
      This action was brought on a check made by defendant, to the order of George Herdfelder. The answer alleged that the check was given without any consideration, and that it was transferred to plaintiff after presentment and dishonor, and with full knowledge of all the facts.
    On the trial it was conceded that the transfer to plaintiff was after the dishonor of the check, and that plaintiff knew that fact.
    It appeared there was an oral agreement between the maker and payee for an exchange of real estate.
    In pursuance of this agreement, the maker gave the check in suit, and the payee gave to the maker a receipt which specified that the check was received on the exchange of the properties, mentioning them and stating their prices.
    It was verbally understood that the parties were to meet the next day and enter into a formal contract.
    They did not do so because the maker of the check backed out of the bargain.
    The check and the receipt were the only writings entered into.
    It did not appear whether the signer of the receipt still held the property he proposed to exchange or not, as the evidence offered on that subject was, upon objection, excluded.
    Defendant offered to prove that at the time the check was given, Mr. Eaubitschek himself being present, he made certain representations in regard to the property; that, on ascertaining the next morning their falsity, the defendant refused to carry out the bargain ; and that Eaubitschek was the agent of Herdfelder in making that bargain.
    This was excluded, and exception was taken.
    The trial judge directed a verdict for the plaintiff, and ordered the exceptions to be heard at a general term, in the first instance.
    
      
      John P. Schuchman, attorney, and Thomas Darlington,, of counsel, for defendant,
    Cited: Wright v. Weeks, 25 N. Y. 153; Davis v. Shields, 26 Wend. 341; Deery v. Parker, 52 N. Y. 494; Cagger v. Lansing, 49 Id. 550 ; Levy v. Brush, 45 Id. 589; De Bearski v. Page, 36 Id. 537.
    
    
      Kurzman and Yeaman, attorneys, and of counsel, for plaintiff.
   By the Court.

The exceptions must be overruled and judgment ordered for the plaintiff, with costs.  