
    Max Rindskopf, Respondent, v. Benjamin Zimmer, Appellant.
    (Supreme Court, Appellate Term, First Department,
    December, 1914.)
    Negotiable instruments — pleading promissory note — agreement to indemnify defendant to extent of one-half the amount — when defendant not entitled to contribution — exclusion of evidence.
    In an action to recover $1,500, the purchase price of an automobile sold and delivered by plaintiff’s assignor to defendant, the answer, after a denial of the assignment, pleaded as a counterclaim that plaintiff’s assignor and defendant made and delivered to H their promissory note for $5,000 and that to induce defendant to sign it plaintiff’s assignor agreed to indemnify him to the extent of one-half of the amount defendant was required to pay thereon. Before the assignment, winch was proved, defendant gave his individual note for the amount of the original note. Held, that defendant was not entitled to contribution unless his individual note wras accepted in payment of the original note, and the exclusion of testimony tending to show that it was so received was reversible error.
    Appeal by the defendant from a judgment of the City Court of the city of New York, rendered in favor of the plaintiff after a trial by the court without a jury.
    Gallert & Heilborn (David J. Gallert and Walter S. Heilborn, of counsel), for appellant.
    Myers & Goldsmith (E. J. Myers and Gordon S. P. Kleeberg, of counsel), for respondent.
   Seabury, J.

This case was tried before the court without a jury, and judgment- rendered for the plaintiff and against the defendant upon his counterclaim. Plaintiff as assignee sues to recover $1,500 for the purchase price of an automobile sold and delivered by plaintiff’s assignor to defendant. Defendant denies the assignment and pleads a counterclaim against plaintiff based upon the .contention that plaintiff’s assignor and defendant made and delivered to Hilder their joint promissory note for $5,000, and that, to induce the defendant to sign such note, plaintiff’s assignor agreed to indemnify the defendant to the extent of one-half the amount defendant was required to pay upon that joint note. Defendant claimed that prior to the assignment to plaintiff he paid the amount of the note and $300 interest. The defendant paid the original note of $5,000 by giving Hilder, the payee, his individual note and $300 interest. The assignment was fully proved. The question in dispute arises upon the counterclaim.

It seems to be settled law that if the defendant paid the whole amount of the joint note he is entitled to contribution against the plaintiff’s assignor. The giving by the defendant of his own note was not suich a payment as entitled the defendant to contribution by the plaintiff’s assignor, unless the note was given in payment. Auerbach v. Rogin, 40 Misc. Rep. 695-697. If the creditors received the note of the defendant in satisfaction of the joint debt, the defendant is entitled to contribution from the plaintiff. Repeated efforts were made by the defendant, both by questions asked and offers made, to show that the individual note of the defendant was received in payment of the joint note, and that when the individual note became due it was paid in full by the defendant, but the court ruled out such offered testimony. These rulings were erroneous and require a reversal of the judgment.

Bijue and Cohalah, JJ., concur.

Judgment reversed, new trial ordered, with costs to appellant to abide event.  