Opinion
March, 1916.
This action was brought to procure the cancellation of a promissory note made by the plaintiff and held by the defendant Alton. The latter in his answer denied the material allegations of the complaint and set up, as a counterclaim, the amount due upon the note, with interest, for which he asked judgment. There have been two trials. The first resulted in a dismissal of the complaint upon the merits and awarded a judgment on the counterclaim for the amount demanded. On appeal the judgment was reversed and a new trial ordered ( Peterson v. Fowler, 162 App. Div. 21). At the second trial the same result was reached and the plaintiff again appeals. I think this judgment should be reversed. The record is substantially the same as it was on the former appeal, except that the plaintiff, as interested parties sometimes do, changed his testimony in some respects to meet, so far as he could, the criticism placed thereon in the opinion delivered on the former appeal. But notwithstanding such changes, at the conclusion of the trial the evidence was, in legal effect, the same as on the former trial. It would serve no useful purpose to set out the facts, since they were fully stated in the previous opinion. It is sufficient to say that the evidence clearly shows the plaintiff never received any consideration for the note; that it was delivered by him to Fowler, or Phillips, or both of them, for the sole purpose of having it discounted and the proceeds paid to him; that Phillips delivered the note to the respondent for the sole purpose of having him discount it and remit the proceeds. The court so found at plaintiff's request and there is an abundance of evidence to sustain the findings. It is true there are findings somewhat in conflict with these, but they are not sustained by the evidence. Alton did not purchase the note, nor did he advance any money upon the strength of it. In fact, he did not conclude to accept the note as his own until a long time after it had been delivered to him and a demand made for its return; and then he did so only on ascertaining that Phillips had absconded. The judgment appealed from is, therefore, reversed, with costs, and judgment given in favor of the plaintiff for the relief demanded in the complaint. Order to be settled on notice, at which time the findings to be reversed and the new findings to be made will be passed upon. Clarke, P.J., Laughlin, Scott and Page, JJ., concurred. Judgment reversed, with costs, and judgment ordered for plaintiff as stated in opinion. Order to be settled on notice.