
    Williams v. Aylesworth.
    
      (Supreme Court, General Term, Fourth Department.
    
    September 19, 1889.)
   For opinion of Merwin, J., and dissenting opinion of Martin, J., see 7 N. Y. Supp. 111.

Hardin, P. J.,

(concurring.) Conflicting evidence is found in the appeal-book on the question of fact presented to the jury. Among other questions submitted to the jury by the trial judge was the one as to whether or not the plaintiff could recover for the value of the property sold to the defendant, and connected with that question was submitted the inquiry as to whether or not the plaintiff accepted the Hardy note in discharge of the indebtedness. There was a conflict in the evidence in that regard; the defendant maintaining that the Hardy note was delivered with the guaranty of collection in payment in satisfaction, or in exchange for the property which he received of the plaintiff. The trial judge, in the course of his charge, stated as follows: “I should say to you that when a creditor accepts from a debtor a note of a third person, to apply upon a precedent debt, the law presumes it not in satisfaction of the debt, and the burden of proof is upon a debtor to show that it was taken in payment and satisfaction of the debt. This is the presumption the law raises in a case where a man lets another have a note of a third person, to apply upon a debt which he then owes the person to whom he transferred the note.” The defendant’s counsel took an exception to that portion of the charge which we have quoted. It seems to have been assumed that the delivery of the Hardy note was contemporaneous with the purchase of the property or contracting of the debt to the plaintiff. Under such circumstances the presumption is that the Hardy note “ was agreed to be taken in payment, and the burden of proving the contrary rests on the creditor.” Noel v. Murray, 13 N. Y. 168. In Gibson v. Toby, 53 Barb. 195, Marvin, J., said: “The fact of a simultaneous exchange is the evidence from which the agreement is presumed. This presumption is not conclusive. The party taking the note may show that it was not the agreement that he should take the note at his own risk, in exchange for his property.” He followed the doctrine which he had laid down in Noel v. Murray, supra, 14 years previous. The conclusion readied, however, was reversed by the court of appeals, as appears by Gibson v. Toby, 46 N. Y. 637; however, not upon the question referred to in the quotation which we have just made from Judge Marvin’s opinion. In 46 N. Y. 643, in delivering the opinion in Gibson v. Tobey, Church, Ch. J., said: “And when a creditor has an option to receive money or a note of a third party, and he accepts the latter, it will be presumed that he receives it with the same effect as if he had received the money. St.John v. Purdy, 1 Sandf. 9.” If the jury found that the note of the Hardys was not received in payment, and therefore the defendant was indebted for the purchase price of the property sold, their conclusion may have been influenced by the language of the charge which we have quoted; therefore the defendant may have been prejudiced by the language used by the trial judge. We are not warranted by anything found in the appeal-book in concluding that the error found in the charge did notprejudicethe defendant. Of course, it is possible to conjecture that the verdict of the jury was placed upon other ground which was litigated. These views-lead to a new trial. Judgment reversed on the exceptions, and a new trial ordered, with costs to abide the event.  