
    Gerardine H. Hickok, Respondent, v. Elizabeth M. Bunting and Jennie R. B. Moore, as Executrices, etc., of Ella F. Bunting, Deceased, Appellants.
    
      What instrument is a promissory note—when, although it recites a consideration, not creating a legal obligation, a legal consideration will be presumed in support thereof.
    
    Gerardine H. Hickok brought an action against the executrices of Ella F. Bunting upon the following instrument:
    “ Hew York, December —, 1893.
    “ Having-been cause of ,a money loss to my friend, Gerardine H. Hickok, I have given her three thousand dollars. I hold this amount in trust for her, and one year after date or thereafter, on demand, I promise to pay to the order of Gerardine H. Hickok, her heirs or assigns, Three thousand dollars with interest.
    “ELLA F. BUHTIHG, 1.16, ’94
    “ 216 East 12th St., H. Y.”
    The plaintiff rested after proving the signature to the instrument, the amount of interest due thereon, and offering the instrument in evidence. The defendants offered no evidence.
    
      Held, that the plaintiff had made out % prima facie case, and that the court properly directed a verdict in her favor;
    That the instrument was a valid promissory note, and that, as it did not appear upon the face thereof that there was no consideration for it, or only an invalid' consideration, it Would be presumed that it was supported by a valid consideration.
    Appeal by the defendants, Elizabeth M. Bunting and another, as executrices, etc., of Ella F. Bunting, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of October, 19.03, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 22d day of October, 1903, denying the defendants’ motion for a new trial made upon the minutes.
    
      Herbert Parsons, for the appellants.
    
      Alfred B. Oruikshamh, for the respondent.
   O’Brien, J.:

This case has already been before this court (Hickok v. Bunting, 67 App. Div. 560). The action is upon an instrument in the nature of a promissory note, a copy of which is as follows: ,

“New York, December —, 1893.
“ Having been cause of a money loss to my friend, Gerardine H. Hickok, I have given her three thousand dollars. I hold this amount in trust for her, and one year after date or thereafter, on demand, I promise to pay to the order of Gerardine II- Hickok, her heirs or assigns, Three thousand dollars with interest.
“ELLA F. BUNTING, 1.16 ’94.
“ 216 East 12th St., N. Y.”

Upon the former trial, after the plaintiff had proved the signature and introduced the note in evidence and given some testimony in support of its validity, the defendants on their part offered evidence which it was thought by this court threw doubt upon .the delivery of the note and raised the question as to whether or not there was consideration therefor. For these reasons a judgment, directed for the plaintiff from which the defendants appealed, was reversed, this court holding that there were presented questions of fact which should have been submitted to the jury.

Upon the new trial the plaintiff contented herself with proving-the signature and'the amount of interest due and, relying upon the presumption of delivery from the possession of the note, offered it in evidence and rested. The defendants moved to dismiss the complaint, and to the denial of their motion excepted, and then in turn rested; and the plaintiff having moved for a direction in her favor, that motion was granted and to this ruling the defendants-excepted, so that it is these exceptions to the refusal to dismiss ’the complaint and to the direction of a verdict for the plaintiff which are now-urged upon our attention.

Had this been a negotiable promissory note in the usual form, we do not - think it would be seriously contended that upon such a record as is here presented a direction of a verdict would not have been proper. The defendants contend, however, that though this instrument be regarded as a promissory note, it is of an unusual kind, and that all the parts of the instrument must be read together, and that inasmuch as on- its face it purports to state a consideration which is neither a legal nor a valid consideration, the one expressed takes the place of the valid consideration which, if such a statement had not appeared upon the face of the note, would be presumed. For this proposition the appellants claim support by taking certain language in our former opinion away from its context and considering it apart from the subject in the discussion of which it was used.

The portion from which the appellants. get most comfort is the following: “ The recital is that the deceased had been the cause of a money loss. This standing alone would be insufficient to show the existence of a present legal consideration or that an enforcible obligation had ever existed. * * * If we eliminate the declaration of the plaintiff that the deceased owed her a debt, then we have nothing in the oral testimony or in the recital of the instrument to establish that there at any time existed a legal enforcible obligation against the deceased in favor of the plaintiff or that the facts were of such a character as would estop the deceased from denying her legal obligation for the payment of the money.” This language was not intended to be nor was it confined to stating that the recital which preceded the promissory portion of the instrument was conclusive either upon the plaintiff or the defendant. What the court was discussing was whether upon all the evidence (that presented on the face of the instrument, together with such corroborating evidence as the plaintiff adduced upon that subject, as offset by the testimony offered by the defendants) the situation was one which,, upon the question of consideration, required that their-case should be submitted to the jury (which was the conclusion we reached) or whether the trial judge was right on the first trial in directing a verdict. As we have pointed out, upon the present trial there was practically no evidence given except such as was needed to entitle the paper to be admitted in evidence. That the paper was a promissory note was expressly held upon the former appeal and in the following language:

Following the declaration of trust the instrument contains a promise to pay, one year after, date or on demand, to the order of the plaintiff, her heirs or assigns, $3,000 with interest. There are no words of limitation of this promise in the language preceding it. The promise to pay is express and is to the. order of the payee, and it contains every essential element to constitute a promissory note as-, defined by the Negotiable Instruments Law (Laws of 1897, chap. 612,. § 320) and by authority. (Carnwright v. Gray, 127 N. Y. 92.) ””

The contention of the appellants may be well founded that, if on the face of the instrument it conclusively appeared that there was no consideration, or that there was an invalid consideration, then the instrument could not be enforced. For the reason, however, that neither of these appeared upon the face of the instrument,- we think that, taking the legal presumption which arises in favor of there having been a valid consideration for the note, and in the absence of any evidence to rebut it, a prima facie case was made out.

In Hegeman v. Moon (131 N. Y. 462) the deceased made an instrument as follows: “ One year after my death I hereby direct my executors to pay to Joseph Hegeman, his heirs, executors or assigns, the sum of nineteen hundred and seventy-six dollars and ■ ninety cents, being the balance due him for cash advanced at various times by him to Adrian Hegeman, my son, and others, as per statement rendered by him this day, without interest.” In that casé as in this the inference was sought to be drawn from the language employed in the note that there was np legal consideration, but the court said: “ The addition of the words that the money is due the payee for cash advanced at various times -by him to Adrian Hegeman, my son, and others, as per statement rendered by him this day,’ does not alter the implication that the money is ■due the payee from the maker. It simply states the origin of the indebtedness of the maker. It was not for money advanced directly to her, but to her son and others. There is nothing inconsistent with her indebtedness to the payee in the fact of this-acknowledged ¡advance of the money to the maker’s son. An original indebtedness may have arisen against the maker by the payee advancing at the maker’s, request moneys to her son. And when she says that a certain amount is due the payee and signs the statement, with the addition of the origin of the indebtedness, the implication is neither "forced nor unnatural that she means that the amount is due from her, or else she would not have signed the paper.”

We think -the respondent is right in asserting that the principle ■of the Hegemam, case and the one at bar are precisely the same, and that, as in the former the court was bound to presume in support of the obligation that the moneys advanced to a third person by the payee were advanced at the maker’s request and thus constituted ¡á legal obligation on the part of the maker, so, in the present case, the court is bound to assume that the money loss which the plaintiff, the payee, had suffered at the hands of the maker was legally chargeable to the maker and constituted a legal liability on her part.

Our conclusion, therefore, is that the disposition made by the learned trial judge was right and that the judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ.,, concurred.

Judgment affirmed, with costs..  