
    John C. Blanshan, as Administrator of Elizabeth R. Bruyn, Deceased, Appellant, v. Benjamin Russell and James B. Keeler, as Executors of the Last Will and Testament of Jacob De Witt, Deceased, Respondents.
    
      Promissory note—where the maker of a note is already engaged to marry the payee, such engagement affords no consideration therefor—friendly services rendered, without expectation of pay—proof of a consideration not recognized in law overcomes the words “for value received.”
    The fact that, at the time of the execution of a note, the maker is engaged to marry the payee does not, in the absence of evidence that the engagement was induced by the giving of the note, establish a sufficient consideration to support it. Wo legal obligation arises to pay for services rendered as mere friendly acts at different times through many years, although they were of value to the recipient, and although some of them were rendered at his request, but not with any idea on the part of the person rendering them of receiving pay therefor.
    An existing legal indebtedness for a certain amount will sustain a promise to pay a much greater amount; but when there is no legal indebtedness whatever, the execution and delivery of a promissory note is a mere nudum pactum, and the note is not enforcible.
    While the words “for valuif" received” in a note import a consideration, yet if the plaintiff proves, on the trial of an action to enforce such a note, that it was made and delivered for a consideration which the law does not recognize as sufficient to sustain the promise, the obligation which rested upon the- defendant to overcome the presumption arising from the use of such words is removed. Merwin and Putnam, JJ., dissented.
    Appeal by the plaintiff, John C. Blanshan, as administrator of Elizabeth R. Bruyn, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ulster on the 27th day of May, 1897, upon the dismissal of the complaint by direction of the court after a trial at. the Ulster Trial Term.
    This action was originally brought by Elizabeth R. Bruyn. to' recover upon a promissory note alleged to have been made and delivered to her by Jacob De Witt on the day he was seized with his last illness. The note purported to be signed by De Witt, who therein stated that it was given “ for value received.”
    
      John E. Van Etten, for the appellant.
    
      John G-. Keeler and John J. Linson, for the respondents.
   Parker, P. J. :

Upon this- trial the plaintiff has given two lines of evidence -which he claims tend to establish a consideration for the note. First, that showing an existing engagement of marriage between ;the parties; second, that showing services rendered for the maker and extending through a period, of thirty or forty, years. He also claims that he is entitled, in addition to this evidence, to the benefit of the presumption that arises from the recital in the note that it is .given “ for value received,” and rests this last claim upon Durland v. Durland (153 N. Y. 67, 74). Notwithstanding such recital and 4lie evidence so given, the trial judges granted defendants’ motion to dismiss the complaint, and the question is presented whether such Tilling was reversible error.

The evidence concerning the marriage engagement clearly does mot show a valid consideration to support the note. It is not claimed that Mrs. Bruyn promised to marry Mr. De Witt if he would give her the note or pay her any sum of money whatever. The evidence shows that an engagement to marry existed between them at the time the nóte was executed, but there is nothing whatever to show that the engagement was induced by the giving of the note. The note was not given as a consideration for the engagement, nor was the engagement entered into in consideration of the giving of the mote. The betrothal had existed for some time before the note was executed, and the mere existence of such an engagement will not :in itself support an executory contract to pay. (Whitaker v. Whitaker, 52 N. Y. 368 ; Cloyes v. Cloyes, 36 Hun, 145.)

As to the services rendered, we must, from the evidence showing •their performance, conclude that they were mere friendly acts, done .at different times through many years, undoubtedly of assistance ..and value to Mr. De Witt, and some of them possibly done at his request, but given out of the kindness of Mrs. Bruyn’s heart, and mot rendered with any idea of being paid for. Prom such evidence the conclusion is not warranted that any legal obligation to pay for the same ever existed against Mr. De Witt.. And the statement of Mr. De Witt himself, upon which the plaintiff relies to connect such services with the note, rather indicates that no such understanding existed between the parties. The substance of the remark : is that he had given her the note as a reward for what she had done : for him. His language in each instance testified to indicates that the note was a reward and not evidence of any debt. Nowhere does he suggest that he was indebted to her in any amount whatever, and in this particular the case is different from Matter of Gallagher (153 N. Y. 364). .

It is true that an existing indebtedness for a certain amount will sustain a promise to pay a much greater amount; but when there is no legal indebtedness whatever, the execution and delivery of a promissory note is a mere “nudum pactiom” and not enforcible. This seems to be a fundamental principle, and the citation of authorities is not necessary. “A person cannot make another his debtor by the rendering of voluntary servicesand, as such services impose no liability upon the person for whose benefit they are rendered, they cannot be a consideration for his subsequent promise to pay for them.” (6 Am. & Eng. Ency. of Law [2d ed.], 693.)

It is true that the recital “for value received” in a note imports a consideration, and the burden is upon the defendant to overcome the presumption arising therefrom. But if the plaintiff, upon the trial, proves that the note was made and delivered for a consideration that the law does not recognize as sufficient to sustain the jiromise, the burden which rested upon defendant has been met by the evidence in the case quite as effectively as if it had been introduced by the defendant himself. In the case before us the evidence introduced by the plaintiff to show a consideration, and particularly the statement of the maker of the note that lie gave it as á reward for what Mrs. Bruyn had done for him, very clearly forbids any speculation by the jury that the- “ value received ” was other than was so shown. In the face of that evidence they would have no right to infer that some other and sufficient consideration in fact existed. Hence, the trial judge had the right to assume that there was no consideration other than appeared in the evidence before him, and was correct in his conclusion that none, sufficient in law, could there be found. The decision in Durland v. Durland, above cited, does not conflict with these conclusions.

The complaint was properly dismissed, and the judgment appealed from should be affirmed, with costs.

All concurred, except Merwin. and Putnam, JJ., dissenting.

Judgment affirmed, with costs.  