Marine v. Peyser , 27 N.Y.S. 226 ( 1894 )

Newburger, J. (dissenting).

This action is brought on a promissory note made by the defendant Peyser to the order of Dempsey and Smith, and indorsed by them and the defendants Eisenberg and Wolfe and by the Malone Stone Company, and held by the plaintiff.

The defendants Peyser and Eisenberg put in separate answers, which admitted the making and indorsing of the note, but alleged that the said note was obtained by Dempsey and Smith, and that they fraudulently diverted the same.

Upon the trial the defendants held the affirmative, and at the close of their testimony plaintiff’s counsel moved for the direction of a verdict in his favor, and the motion was granted and the verdict directed accordingly, and this appeal is taken from the judgment entered upon said verdict and from the order denying defendants’ motion for a new trial.

The evidence clearly shows that the note was given and indorsed pursuant to the terms of a contract between the defendant Peyser and Dempsey and Smith, which contract was for certain labor to be performed and materials to be furnished by Dempsey and Smith to the defendant Peyser in the building of certain houses in this city, and the services so rendered and materials furnished were to be paid in certain installments.

. The note was given as required by the terms of the contract, and the claim that Peyser was induced to make the note by the promise that the work that might prove defective should be remedied was not borne out by the testimony, nor would it warrant this court in holding it to be a diversion of the note in suit.

The trial justice was justified in directing a verdict for the plaintiff.

There are no exceptions in the case that would warrant us in disturbing the rulings of the trial justice.

Judgment and order appealed from affirmed, with costs.

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