
    S. Dimon Smith, Respondent, v. Dayton Hedges, Appellant. Same, Respondent, v. Same, Appellant.
    
      Smith v. Hedges, 170 App. Div. 349, affirmed.
    (Submitted January 29, 1918;
    decided February 12, 1918.)
    Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 29, 1915, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court: The actions were to recover upon two promissory notes to the order of the Pioneer Iron Works, plaintiff’s assignor, in part payment for the building of an asphalt plant. The answer in action No. 1 set up as separate defenses: First, that at the time of the making and delivery of said note the defendant stated to the said Pioneer Iron Works that' the said note was made and delivered to the payee for the accommodation of the payee only, and that the defendant did not admit that any amount whatsoever was due and owing to the said Pioneer Iron Works, and that in’ event that the said asphalt plant was not- completed at the maturity of said nóte the defendant would not pay the same. Second, that the note was obtained by the plaintiff’s assignor from the defendant because of and relying upon the false and fraudulent representation and statement of the said Pioneer Iron Works that the said Pioneer Iron Works was in a position to complete and would complete the said asphalt plant within a period of ten days from the time of said statement. The answer in action No. 2 alleged as separate defenses: First, that the promissory note was assigned to the plaintiff, after maturity and refusal of the defendant to pay the same; that the said note was given as part consideration for the building of an asphalt plant; that said plant was not built, and that on that account the defendant did not receive consideration for the note. Second, that the note was obtained by fraud. The trial court struck out the separate- defenses and directed a verdict.
    
      John R. Vunk for appellant.
    
      Gustav Lange, Jr., for respondent.
   Judgment in each case affirmed, with costs of one appeal; no opinion.

Concur: Hiscock, Ch. J., Chase, Collin, Cuddeback, Hogan and McLaughlin, JJ. Not sitting: Crane, J.  