Wimpfheimer v. Ludwig

Browne, J. There can be no doubt that the court has the authority to direct a verdict, on the opening of counsel, where admissions are made which leave no question of fact to litigate. Clews v. Bank, 105 N. Y. 398, 11 N. E. Rep. 814. But where this course is adopted, all the facts referred to therein, and offers of proof, should be considered. Id. An examination of statements made by counsel as to what he expected to prove in behalf of the defendants to sustain the defense set forth in the answer would, if proven to the satisfaction of the jury, relieve the defendants from liability. A fair interpretation of counsel’s statement lead to the conclusion that the jury might infer from the conversation, which he said would be proven, that the agreement referred to in the opening and alleged in the answer was made. Yow, this agreement, as outlined, was that the defendants gave the note in suit to one Jacob Fisher for his accommodation. That the plaintiff knew the fact. With such knowledge he received the note. While it was in his possession it is alleged that he requested Jacob to make an assignment of his property for the benefit of his creditors, with a preference to him for his indebtedness to him. That if Jacob made this assignment and preference, the plaintiff would accept the same in satisfaction of Jacob’s indebtedness to him, which included the note in suit. Yow, if such statement was shown to be true, Jacob was the real debtor on the note. The plaintiff knew that, and in discharge of that debt the plaintiff accepted an assignment of Jacob’s property. This act amounted to a satisfaction of the debt, and discharged the defendants' from liability upon the notes. Bank v. Sherman, 33 N. Y. 69. It appears to me that there was a misconception upon the trial as to the position of the defendants counsel. In addition to his contention that the note was satisfied by reason of agreement made between Jacob and plaintiff, he claimed the right to present to the jury the question whether the defendants promised not to interfere with Jacob’s assignment if they were released from liability upon the note. Upon this question the defendants would not be entitled to go to the jury, for the reasons stated by the learned counsel for the plaintiff. Yet this would not deprive him of presenting the question of satisfaction of the note under the agreement first mentioned. A party may present as many defenses as he may have, and if one is good it would be unnecessary to present' [434] others. The defendants should have been permitted to prove (if they could) the issue as to whether the note was satisfied in the manner alleged in the answer. We therefore think the judgment should be reversed, and a new trial ordered, with costs to abide event. Ehrlich, J., concurred.