Wesley Lord, Respondent, v. Theron E. Rumrill and Mary L. Rumrill, Appellants

Wesley Lord, Respondent, v. Theron E. Rumrill and Mary L. Rumrill, Appellants. Third Department, January 6, 1909. Evidence —bills and notes —testimony showing that transfer to plaintiff was improbable. Where the maker of promissory notes defends upon the ground that the instruments were not transferred to the plaintiff by the payee, his father, since deceased, which transfer is evidenced only by the plaintiff’s testimony, it is error to exclude evidence tending to show that the relations between the payee and the plaintiff were strained for a long period prior to the former’s death. Appeal by the defendants, Theron E. Bumrill and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Eulton.on the 11th day of February,/1908, upon the verdict of a jury rendered by. direction of the court after a trial at tlié Fulton Trial Term. The action is upon two promissory notes, each of them dated December 3, 1901. The complaint alleges that these notes were transferred to the plaintiff shortly before the death of Jacob Lord. There were • two notes, one for $15 and the other for $242. The answer denies the transfer to the plaintiff of the $242 note and alleges payment of both notes by services rendered to Jacob Lord, the payee of the notes, in a sickness which occurred at the defend- • ants’ house. At the close of the evidence' the court directed a verdict for the plaintiff. To this direction the defendants duly excepted, and from the judgment entered upon this directed verdict,- this appeal is taken. William S. Cassedy, for the appellants. N. H. Anibal, for the respondent. [MAJORITY — Smith, P. J.:] Smith, P. J.: There were two issues raised by the pleadings: First, whether Jacob Lord had transferred.the notes in question to the plaintiff’ so as to authorize an action to be brought by the plaintiff. Second, whether those notes have been paid. The plaintiff swore that the notes were transferred to him by his father, Jacob Lord, a few weeks before his father’s death. The defendants attempted to cross-examine the plaintiff upon this, and upon his relations with his father prior to his father’s death, as bearing upon the fact of the transfer. Among other things, he was asked what he paid for the notes. This was objected to, and the court remarked: “ In view of the statement that the plaintiff is not going to contest defendants’ right to set up services in payment of this note while it was owned by Jacob Lord, we will not go into that, because under . that position the plaintiff has no greater rights here than Jacob Lord would have if he had lived.” Defendants excepted, Thereafter questions.. weré asked tending to show strained relations between the father and son for a long time prior to his death, which questions were objected to and excluded by the court, to which exclusion the defendants duly.excepted. We think this evidence was competent as bearing upon the probability of the plaintiff’s story, to the effect that his father had given him the notes. If a valid transfer had not been made the right of action was in the father’s estate, which could have recovered from the defendants even after a recovery by the plaintiff. The transfer has been sworn to by the plaintiff alone. He was an interested witness. The evidence sought to be introduced, therefore, showing any facts which would render improbable the plaintiff’s story was competent and should have been admitted. For this error the judgment must be reversed and a new trial granted, with costs to appellants to abide the event. All concurred. Judgment reversed and new trial granted, with costs to appellants to abide event.