
    Kenneth C. Oelfke, Respondent, v. Onondaga Ready Mix, Inc., Appellant. Kenneth C. Oelfke, Respondent, v. Onondaga Ready Mix, Inc., Appellant.
    Fourth Department,
    November 16, 1955.
    
      D. Charles O’Brien for appellant.
    
      William J. Mackay for respondent.
   Vaughan, J.

This appeal involves two separate actions to recover on two promissory notes executed by the defendant corporation and delivered to plaintiff as payee. The notes are dated December 18,1951, and July 1,1952, and are in the face amounts of $1,250 and $2,000 respectively. Both notes are payable on demand, bear the words “ Value received ” and were signed by the plaintiff as treasurer of the defendant corporation. The answers admitted the execution and delivery of the notes, but set up the defense of want of consideration. The actions were tried before the Municipal Court of Syracuse, and a jury, resulting in verdicts for the full face amount of each note. On appeal to the Onondaga County Court, the judgments were affirmed. On the trial the sole question litigated was whether the notes were issued for consideration. At the time the notes in question were executed, plaintiff was a salaried employee of the defendant corporation. In brief, his testimony was to the effect that both notes were issued as additional compensation. The testimony presented a sharp question of fact on that issue. However we believe the weight of the evidence is that the notes in suit were issued for no consideration, certainly not for additional compensation to the plaintiff. The preponderance of testimony would indicate that the $1,250 note was issued and delivered for expenses which it appears plaintiff never incurred, and the $2,000 note was merely an executory promise to pay a dividend which was never declared. The idea of issuing notes in anticipation of the payment of a dividend was abandoned, and at a subsequent meeting all of the stockholders other than the plaintiff turned back their notes for destruction. On that occasion the evidence indicates that plaintiff excused his failure to deliver up his note on the theory that he had forgotten to bring it to the meeting. But the understanding was that he would destroy it.

Under the circumstances we feel that the jury’s verdict in each action is against the weight of the evidence, and that the judgments of the Municipal Court of Syracuse, and the order of affirmance of the Onondaga County Court should be reversed and a new trial ordered in the Municipal Court of Syracuse, with costs to appellants in all courts to abide the event.

All concur. Present: McCurn, P. J., Vaughan, Kimball, Wheeler and Van Duser, JJ.

Order of Onondaga County Court and judgments of Syracuse Municipal Court reversed on the facts and a new trial granted in the Syracuse Municipal Court, with costs in all courts to appellants to abide the event.  