Reynolds v. Stein ( 1909 )

PER CURIAM.

The action is on a bond given by the defendant Stein as collateral security to a bond and mortgage given by the defendant Hawes. The latter defendant was not served with process and has not appeared in the action. The defense is want of consideration and mutual mistake. Having rigidly excluded all evidence tending in any degree to sustain the defense, the court below directed a verdict for the plaintiff. Defendant appeals.

The learned court below clearly misconceived the law of evidence with regard to sealed executory contracts. In such cases the se is merely presumptive evidence of a sufficient consideration, which may be rebutted, as if the instrument were not under seal. 2 Rev. St. (1st Ed.) p. 406, pt. 3, c. 7, tit. 3, § 77; Code, § 840; Wells v. Wells, 8 App. Div. 426, 40 N. Y. Supp. 836; Juilliard v. Chaffee, 92 N. Y. 536; Baird v. Baird, 81 Hun, 302, 30 N. Y. Supp. 785; Home Life Ins. Co. v. Watson, 59 N. Y. 395; Ferris v. Hard, 135 N. Y. 364, 32 N. E. 129. Defendant was entitled, under the allegations of his answer, to show that the intended and agreed consideration was different from that expressed in the bond, and, further, that no such consideration passed. Baird v. Baird, 81 Hun, 302, 30 N. Y. Supp. 785; Id., 145 N. Y. 665, 40 N. E. 222, 28 L. R. A. 375; Broadway Trust Co. v. Fry, 40 Misc. Rep. 680, 83 N. Y. Supp. 103; Forgotson v. Cragin, 62 App. Div. 248, 70 N. Y. Supp. 979.

The judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event.