Opper v. Caillon , 9 Daly 157 ( 1879 )

Van Hoesen, J.

This judgment must be reversed. The defendant was entitled to the affirmative of the issue, and it was error sufficient to reverse the judgment for the court to refuse him the opening and the close, at the trial (Huntington v. Conkey, 33 Barb. 218; Lindsley v. Petroleum Co. 10 Abb. N. S. 107; Millerd v. Thorn, 56 N. Y. 402).

Moreover, it was error to reject the evidence offered by the defendant of the circumstances under which the note was made. Under the pleadings it was competent for him to show that the note was given by him for the accommodation of the payee, and without consideration, and that the plaintiff took it with knowledge of that fact, and not for value, or in payment of, or as security for, an antecedent debt. If such a state of facts had been shown, the defense would have been complete (68 H. Y. 503).

As the defendant was prevented from showing that the note was accommodation paper, it would have been of no avail for him to offer proof that the plaintiff had not taken it either for value, or as security for, or in payment of, an antecedent debt.

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

J. F. Daly, J., concurred.

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