Taylor v. Surget

Beady, J. : The note in controversy was payable to the order of Captain Aleck Norton, and was at its maturity in his possession, where it continued down to the time of his death. It then formed a part of his estate.. It was transferred by his executor to the plaintiff in tins suit, by delivery, and without indorsement. There was no consideration paid for it, and, the plaintiff was a stranger to the executor. It is very apparent that the transfer was made for the purpose of prosecuting the note, and that the plaintiff to whom it was transferred received it for that purpose. He failed to show any legal title to the note, because of the manner in which it was transferred. He also failed to show any equitable title, because there Avas no proof that he parted with any consideration for it. On the contrary, the evidence tends to show quite strongly that he paid nothing. ■ Under such circumstances' the complaint was [118] properly dismissed. (Clark v. Phillips, 21 How., 87.) Although the case of Brisbane v. Pratt (4 Denio, 63), may lie regarded as overruled by the cases of James v. Chalmers (6 N. Y., 209); Seeley v. Engell (17 Barb., 534), and Smith v. Schank (18 Barb., 344), and the possession of a note may be presumptive evidence of ownership, the presumption can be overcome, and is overcome when the evidence shows that no consideration was paid for it. The motion for a new trial should be denied, and judgment' ordered for the defendant on the dismissal. Davis, P. J., and Ingalls, J., concurred. Motion for new trial denied; judgment ordered for defendant.