Opinion
June, 1901.
Mayer Gilbert (A.S. Gilbert and Julius M. Mayer, of counsel), for appellant.
Jacob Levy (S.D. Lasky, associated), for respondent.
It seems to be conceded that if the note in suit was given in exchange for a similar note by Heymann, plaintiff's assignor, the defense of usury must fail. If, however, it was given without consideration and had no legal inception until discounted by plaintiff, the defense may be successful. The crucial question, therefore, is whether or not there was an exchange of notes. The correspondence, in date, amount and term of the note given to Heymann by Brandt, and the note given by Brandt to Heymann, certainly raises a presumption that there was such an exchange, but it is a presumption which might be capable of refutation, and the defendant had the right to rebut it if he could. The question put to him as to what occurred when Heymann gave him the note which is asserted to have been given in exchange for the note in suit, was, therefore, material and pertinent, as its answer might have tended to rebut the presumption of exchange which rests alone upon the similarity in date and tenor of the two notes. The refusal to permit the question to be answered was error, for which the judgment must be reversed.
Present: SCOTT, P.J., BEACH and FITZGERALD, JJ.
Judgment reversed and new trial granted, with costs to appellant to abide event.