
    Charles N. Dougherty, an Infant, by Susan M. Teves, His Guardian ad Litem, Respondent, v. Emma L. Salt, as Executrix of Hellena M. Dougherty, Deceased, Appellant.
    Promissory notes — decedent’s estate — evidence — the words “ value received ” must give way to evidence that.there was no consideration — erroneous direction of nonsuit — error to exclude evidence offered under general denial that decedent’s signature was forged.
    1. Where it appeared by the evidence produced for the plaintiff that a decedent made and gave the note in suit as a voluntary gift without consideration, the formula of the printed blank which contained the words “ value received ” becomes, in the light of the conceded facts, a mere erroneous conclusion which cannot overcome the conclusion of the law. (Neg. Inst. Law, § 54; Cons. L. ch. 38.)
    2. Where the trial judge did not reserve his ruling on defendant’s motion for a nonsuit or for the direction of a verdict, b.ut denied the motion absolutely, it was error in setting aside a verdict for the plaintiff as contrary to law, to dismiss the complaint. A new trial should have been granted. (Code Civ. Pro. §§ 1185, 1187.)
    3. Where in such an action the defendant denied the execution of the note by decedent, it was error for the trial court to exclude evidence offered under a general denial, to show that the signature to the note was forged.
    
      Dougherty v. Salt, 184 App. Div. 910, reversed.
    (Submitted October 21, 1919;
    decided November 18, 1919.)
    Appeal from a judgment entered June 20,1918, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which reversed a judgment in favor of defendant entered upon an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and directing a dismissal of the complaint and reinstated said verdict.
    The nature of the action and the facts, so far as material, are stated in the opinion.
    
      Abraham Levitt and Charles Oechler for appellant.
    The plaintiff’s own witnesses having shown by their testimany that the note was given without consideration except that of love and affection, it follows that no action will lie to enforce it. (Kramer v. Kramer, 181 N. Y. 477; Blanshaw v. Russell, 52 N. Y. Supp. 963; 161 N. Y. 629; Harris v. Clark, 3 N. Y. 93; Holmes v. Roper, 141 N. Y. 66.)
    
      Walter B. Raymond and Victor C. Cormier for respondent.
    The verdict of the jury on the evidence was proper and in accordance with the law. (L. 1897, ch. 615, § 50; Bringman v. Von Glahn, 71 App. Div. 537; Hegeman v. Moon, 131 N. Y. 462; Durland v. Durland, 153 N. Y. 67; Carnwright v. Gray, 127 N. Y. 92; Strickland v. Henry, 175 N. Y. 372; Hickok v. Bunting, 67 App. Div. 560; McCormack v. Williams, 88 N. J. L. 170.)
   Cardozo, J.

The plaintiff, a boy of eight years, received from his aunt, the defendant’s testatrix, a promissory note for $3,000 payable at her death or before. Use was made of a printed form, which contains the words value received.” How the note came to be given, was explained by the boy’s guardian, who was a witness for his ward. The aunt was visiting her nephew. “ When she saw Charley coming in, she said ‘ Isn’t he a nice boy?’ I answered her, yes, that he is getting along very nice, and getting along nice in school, and I showed where he had progressed in school, having good reports, and so forth, and she told me that she was going to take care of that child, that she loved him very much. I said, ‘ I know you do, Tillie, but your taking care of the child will be done probably like your brother and sister done, take it out in talk.’ She said: I don’t intend to take it out in talk, I would like to take care of him now.’ I said, ‘ Well, that is up to you.’ She said, ' Why can’t I make out a note to him?’ I said, 1 You can, if you wish to.’ She said, ‘ Would that be right?’ And I said, ‘ I do not know, but I guess it would; I do not know why it would not.’ And she said, ‘ Well, will you make out a note for me?’ I said, ‘ Yes, if you wish me to/ and she said, Well, I wish you would.’ ” A blank was then produced, filled out, and signed. The aunt handed the note to her nephew with these words, “ You have always done for me, and I have signed this note for you. Now, do not lose it. Some day it will be valuable.”

The trial judge submitted to the jury the question whether there was any consideration for the promised payment. Afterwards, he set aside the verdict in favor of the plaintiff, and dismissed the complaint. The Appellate Division, by a divided court, reversed the judgment of dismissal, and reinstated the verdict on the ground that the note was sufficient evidence of consideration.

We reach a different conclusion. The inference of consideration to be drawn from the form of the note has been so overcome and rebutted as to leave no question for a jury. This is not a case where witnesses summoned by the defendant and friendly to the defendant’s cause, supply the testimony in disproof of value (Strickland v. Henry, 175 N. Y. 372). This is a case where the testi.mony in disproof of value comes from the plaintiff’s own witness, speaking at the plaintiff’s instance. The transaction thus revealed admits of one interpretation, and one only. The note was the voluntary and unenforcible promise of an executory gift (Harris v. Clark, 3 N. Y. 93; Holmes v. Roper, 141 N. Y. 64, 66). This child of eight was not a creditor, nor dealt with as one. The aunt was not paying a debt. She was conferring a bounty (Fink v. Cox, 18 Johns. 145). The promise was neither offered nor accepted with any other purpose. Nothing is consideration that i's not regarded as such by both parties ” (Philpot v. Gruninger, 14 Wall. 570, 577; Fire Ins. Assn. v. Wickham, 141 U. S. 564, 579; Wisconsin & M. Ry. Co. v. Powers, 191 U. S. 379, 386; DeCicco v. Schweiser, 221 N. Y. 431, 438). A note so given is not made for “ value received,” however its maker may have labeled it. The formula of the printed blank becomes, in the light of the conceded facts, a mere erroneous conclusion, which cannot overcome the inconsistent conclusion of the law (Blanshan v. Russell, 32 App. Div. 103; affd., on opinion below, 161 N. Y. 629; Kramer v. Kramer, 181 N. Y. 477; Bruyn v. Russell, 52 Hun, 17). The plaintiff, through his own witness, has explained the genesis of the promise, and consideration has been disproved (Neg. Instr. Law, see. 54; Consol. Laws, chap. 43).

We hold, therefore, that the verdict of the jury was contrary to law, and that the trial judge was right in setting it aside. He went too far, however, in dismissing the complaint. He might have dismissed it if he had reserved his ruling on the defendant’s motion for a nonsuit or for the direction of a verdict (Code Civ. Pro. secs. 1185, 1187). Instead of reserving his ruling, he denied the motion absolutely. Upon the return of the verdict, he should have granted a new trial.

A new trial was also necessary because of error in rejecting evidence. The defendant attempted to prove that the signature to the note was forged. The court refused to hear the evidence, because forgery had not been pleaded as a defense. The answer did deny the execution of the note. The evidence of forgery was admissible under the denial (Schwarz v. Oppold, 74 N. Y. 307; Farmers’ L. & T. Co. v. Siefke, 144 N. Y. 354).

The judgment of the Appellate Division should be reversed, and the judgment of the Trial Term modified by granting a new trial, and as modified affirmed, with costs in all courts to abide the event.

Hiscock, Ch. J., Chase, Collin, Hogan, Crane and Andrews, JJ., concur.

Judgment accordingly.  