
    Charles R. Benjamin, Respondent, v. Walter Howe, Appellant.
   Defendant appeals from a judgment in favor of plaintiff for $1,310.80, being the balance of $1,160 due on a promissory note and $150.80 interest. The judgment was amended by order entered March 19, 1953, so as to add $125.80 costs, making a total of $1,436.60. Amended judgment affirmed, with costs. No opinion. Nolan, P. J., Wenzel, MaeCrate and Beldock, JJ., concur; Schmidt, J., dissents and votes to modify the amended judgment by allowing defendant a setoff of $284, reducing the amount of recovery on the note to $876, with interest on that amount from December 7, 1950, and $125.80 costs, with the following memorandum: The action was to recover the balance due on a nonnegotiable note given by defendant to plaintiff in payment for a used airplane, or to recover the balance due for goods sold and delivered. There was evidence that on December 7, 1950, when defendant purchased the airplane, $384 was due from plaintiff to the airfield where the airplane was stored, for storage and handling. Although plaintiff introduced in evidence a receipted bill for payment in full, the evidence indicates that plaintiff had made a cash payment of $100 and had authorized the airfield to retain miscellaneous material from the airplane in payment of the $284 balance. There was no direct proof that this arrangement was made with defendant’s consent. Therefore, the airplane, for which the promissory note was given in payment, was never delivered to defendant. As this action is between the maker and payee of the note, in my opinion, defendant is entitled to a setoff of $284, which amount must be naid before defendant can obtain delivery of the airplane.  