
    JOHN O. WHITAKER, Respondent, v. MILTON D. WHITAKER, Appellant.
    
      Payment — when receipt of note of third person is not.
    
    Appeal from a judgment, in favor of plaintiff, entered on the report of a referee.
    The plaintiff made a written contract to sell to the defendant certain land, at a certain price, to be paid at specified times. On the day of the date of the contract, the plaintiff received from the defendant the note of a third person, indorsed by the defendant. And the plaintiff indorsed upon the contract, as received thereon, this note. There was no agreement other than this, that the note should be taken in payment. The note was not paid or protested. The plaintiff sued for the balance due on the contract, being the amount of the note. There was no agreement in the written contract that the note should be taken as a part of the purchase-money. The contract provided for money payments. The Glen eral Term held, that the note having been taken on a precedent debt, was not to be deemed to be taken in payment, unless on positive proof to that effect.
    The plaintiff having offered to return the note on the trial, the court held this to be sufficient, citing Nichols v. Michael (23 N. Y., 267).
    
      T. & A. Moore, for the appellant.
    
      Alex. Cumming, for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and James, JJ.

Judgment affirmed, with costs.  