Hoyt v. Cross

• Decision Date: 17 January 1888
• Citation: 108 N.Y. 76,14 N.E. 801
• Parties: HOYT v. CROSS.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 76

14 N.E. 801

HOYT

v.CROSS.

Court of Appeals of New York.

January 17, 1888.

Action by Charles G. Hoyt against Joseph A. Cross upon a promissory note made by the latter. Judgment for defendant. Plaintiff appealed.

PECKHAM, J., dissenting.

Joseph A. Burr, Jr., for appellant.

E. W. Van Vranken, for respondent.

EARL, J.

This action was brought to recover on a promissory note made by the defendant, dated March 10, 1884, whereby he promised to pay the plaintiff, on demand, the sum of $500. The defendant alleged in his answer that the plaintiff played with him at a game of change called ‘Cribbage,’ for stakes, upon credit, and that at such gaming he won from time to time the sum of $500; that the note sued on was given for the money so staked and lost, and that it was void and contrary to the statute against gambling and betting. The trial judge, after hearing all the evidence, directed a verdict in favor of the defendant, and ordered the plaintiff's exceptions to be heard in the first instance at the general term. There, the exceptions were overruled, and judgment ordered for the defendant.

Upon the facts as they appear in this record we think the plaintiff was entitled to recover. Shortly prior to the seventh day of August, 1883, the plaintiff and defendant played at cribbage for stakes, and the defendant lost $500. On that day the plaintiff called at the office of the defendant, and asked him to pay the debt thus created. The defendant replied that it was not convenient to pay it then, and, upon being pressed for the money, proposed to the plaintiff that if he would lend his note for three months for $500 to the defendant's firm, he would get it discounted, and pay him the money, and take care of the note when it came due, Accordingly, plaintiff made and delivered his note for $500, dated on that day, payable three months from date, to the order of Goodwin, Cross & Co., and the defendant procured it to be discounted, and used the money to pay the gambling debt. That note fell due on the tenth of November, and on the twenty-seventh day of November the plaintiff made another note for $500, payable to the order of Goodwin, Cross & Co., at the request of the defendant; he stating that he wanted it to enable him to take care of the prior note. That note matured on the first of March, 1884, and the defendant again asked the plaintiff for a new note for the same amount, and running for the same time. Plaintiff objected to giving another note, for the reason that if either he or defendant died, he would have nothing to show but that he owed the firm of Goodwin, Cross & Co. that note, and thereupon asked defendant to give him a note payable on demand, to offset the accommodation note which he had loaned defendant's firm, and this the defendant did; and the note thus given is the one in suit. In pursuance of this arrangement, the plaintiff made an accommodation note, payable to the same firm, which fell due June 13, 1884. On the twenty-seventh of June defendant procured from plaintiff another accommodation note, but the amount was increased to $600. That note became due October 1st, and on October 27th defendant obtained from plaintiff another note for three months, reducing, however, the amount thereof to the original sum, $500. Before the note of October 27th matured, it was transferred to an innocent holder for value, who sued the plaintiff upon it, and he was compelled to pay it. He then brought this suit.

We do not perceive how this note is...