
    The Mutual Loan Association, Respondent, v. Fred, Brandt, Appellant.
    (Supreme Court, Appellate Term,
    June, 1901.)
    Bills and notes — Consideration — Rebuttal of presumption arising from an exchange of notes.
    Where the holder of a promissory note proves by the maker (who alleges that he received no consideration for it and that the holder cannot enforce it because the holder bought it at an usurious discount) that, on the day he delivered the note to the assignor of the holder, the maker received from the assignor his note of the same amount and maturity, the maker is entitled to show in rebuttal what occurred when the assignor gave him his note, as the maker is entitled to rebut the presumption of exchange which arises from the similarity in the date and tenor of the notes.
    Mutual Loan Assn. v. Brandt, 34 Mise. Rep. 400, reversed.,
    Appeal from a judgment of the General Term of the City Court of the city of New York, affirming a judgment entered on a verdict directed by the court at Trial Term.
    Action upon a promissory- note made by the defendant to his own order, indorsed by him, by Estella Heymann, and by Henry M. Heymann, and delivered by the latter to the plaintiff at a discount greater than the legal rate. The plaintiff proved by the defendant, on the hitter’s cross-examination, that on the same day that he delivered the note in suit to Henry M. Heymann he received from Heymann his note for an equal amount, maturing at the same date. The defendant had testified on the direct that he had received no consideration for the note in suit, and that it was made by him for the accommodation of Henry M. Heymann. The court refused to let the defendant show, on the redirect, “ just what occurred ” when Henry M. Heymann gave the note in suit, and also excluded the defendant’s attempt to prove, by the books of the plaintiff, usury in the purchase of the note.
    Mayer & Gilbert (A. S. Gilbert and Julius M Mayer, of counsel), for appellant.
    Jacob Levy (S. D. Lasky, associated), for respondent.
   Per Curiam.

It seems to be conceded that if the note in suit was given m exchange for a similar note by Heymann, plaintiff’s assignor, the defense of usury must fail. If, however, it was given without consideration and had no legal inception until discounted by plaintiff, the defense may be successful. The crucial question, therefore, is whether or not there was an exchange of notes. The correspondence, in date, amount and term-of the note given to Heymann by Brandt, and the note given by Brandt to Heymann, certainly raises a presumption that there was such an exchange, but it is a presumption which might be capable of refutation, and the defendant had the right to rebut it if he could. The question put to him as to what occurred when Heymann gave him the note which is asserted to have been given in exchange for the note in suit, was, therefore, material and pertinent, as its answer might have tended to rebut the presumption of exchange which rests alone upon the similarity in date and tenor of the two notes. The refusal to permit the question to be answered was error, for which the judgment must be reversed.

Present: Scott, P. J., Beach and Fitzgerald, JJ.

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