Lowenfeld v. Rozenoer , 9 N.Y.S.2d 409 ( 1939 )

Per Curiam.

As the complaint was dismissed at the close of the plaintiff’s case, plaintiff is entitled to the benefit of the most favorable inferences that may be drawn from the proof. So considering the evidence, we deem that he established a prima facie case and that it was error to dismiss the complaint. It appears that when the $4,000 note was delivered it was to cover the payment of a balance of $1,500 due on a second note for $1,850 that was in the hands of the Manufacturers’ Trust Company, on which the plaintiff and defendant’s testator were both liable. Though plaintiff was primarily liable for the payment of the last-mentioned note, it would not necessarily follow that there was no consideration for defendant’s promise to pay the $1,500 to the Manufacturers’ Trust Company, if such promise was made. The existence of consideration would depend on what amount the plaintiff owed defendant’s testator prior to the delivery of the $4,000 note.

We cannot determine from the present record that the sum so owed, plus the amount due to the Manufacturers’ Trust Company, was in excess of $4,000. There was, at least, prima facie proof that it was less than that amount.

The defense of res adjudícala was not established by the proof introduced. It did not appear therefrom that at the time of the prior suit defendants were in default in paying the $1,500 note, and as plaintiff had not yet been compelled to pay that sum, he was in no position to assert his present claim upon the prior trial.

The judgment should be reversed and new trial ordered, with costs to the appellant to abide the event.

Present — Martin, P. J., Glennon, Untermyer, Dore and Callahan, JJ.

Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.