
    Hyman Olansky and Davis Parken, Respondents, v. Zax K. Berlin, Impleaded, etc., Appellant.
    Appeal by the defendant Berlin from a judgment and order of the General Term of the City Court of the city of Hew York affirming a judgment in favor of the plaintiffs entered upon the verdict of a jury and affirming an order denying the defendant’s motion for a new trial.
    Leon A. Malkiel, for appellant.
    Herman Herst, Jr., for respondents.
   Freedman, P. J.

The complaint starts with an allegation of prior indebtedness, and then alleges that the defendants to secure the payment of their original indebtedness and in consideration of the credit thereby secured, delivered to the plaintiffs their promissory notes, copies of which are annexed and made part thereof. The notes annexed show that each of them was signed by the defendant Heilpern on the face and by the defendants Cohen and Berlin on the back. The complaint further alleges that at the time of the delivery of the notes the defendants agreed with the plaintiffs that in case any of the notes was not paid at maturity, the rest should, at the option of the plaintiffs, become due and payable; that two of the notes were due and unpaid and that plaintiffs elect to declare all the notes due and payable.

The defendant Berlin, after denying some of the allegations of the complaint, defended upon the grounds:

(1) That he had signed solely as an endorser and had not received notice of nonpayment, and

(2) That the defendants Heilpern and Cohen, with the consent of the plaintiffs, assumed the payment of said notes and released Berlin from any liability thereon.

The complaint sufficiently states a cause of action. At the trial the question was litigated whether Berlin deliberately signed as maker on the back of the notes, because there was no room for his signature on the face, or as endorser, and that issue was determined by the jury in favor of the plaintiffs. There is sufficient evidence to sustain the verdict on that point, and as the controversy is between the original parties who concededly were indebted to the plaintiffs when the notes were given to secure an extension of the time of payment, the finding of the jury on that question of fact should not be disturbed. The Negotiable Instrument Law does not control in such a case.

As to the release of Berlin there was no proof connecting the-plaintiffs with it, and hence defendants’ Exhibit 7 for-identification was properly excluded.

The denial of defendants’ motion to strike out all parol evidence-of the alleged agreement between plaintiffs and defendants to-the effect that if one note became due and remained unpaid, all the others should become payable at once, does not constitute reversible error. True, Davis Parken, one of the plaintiffs, had given parol evidence upon this point and the plaintiffs then called! the defendant Cohen as a witness on their behalf and in the course of his examination it appeared that a written agreement upon that-point had been signed by the parties. But the defendant did not then and there move to strike out the prior parol evidence, -nor call for the production of the written agreement. He allowed, the plaintiffs to complete their case and then moved for a dismissal' of the complaint on the ground of its insufficiency and the insufficiency of proof given in support thereof, and after this-motion had been denied, he for the first time moved to strike out the said parol evidence. At that stage of the case the denial of the motion rested in the discretion of the trial judge and after-such denial the defendant’s remedy was to ask for instructions-to the jury to disregard it. The defense then gave evidence without producing or calling for the written agreement, and after the plaintiffs had given evidence in rebuttal, the defendant renewed, his motion to dismiss on all the grounds previously urged which was denied,, and the issues were then submitted to the jury without any request on the part of the defendant that the jury be instructed to disregard the parol evidence. Under the circumstances as stated the refusal of the trial judge to strike out' theparol evidence referred to, constitutes no ground for a new trial. Platner v. Platner, 78 N. Y. 101; cited with approval in Pontius v. People, 82 id. 347, and followed in Hutton v. Murphy, 9 Misc. Rep. 154, and in Parker v. Paine, impleaded, etc., decided at the present term of this court.

The record discloses no reason for disturbing the judgment-appealed from.

G-iegerich and Greehbaum, JJ., concur.

Judgment affirmed with costs.  