Opinion
June, 1926.
Judgment and order reversed upon the law, and new trial granted, costs to abide the event. Plaintiff failed to prove that, at the time he made the formal demand upon defendant for the payment of the note, he exhibited the note to defendant or had the note in his possession. ( Gilpin v. Savage, 201 N.Y. 167. ) Kelly, P.J., Manning, Kapper and Lazansky, JJ., concur; Young, J., dissents, being of opinion that the stipulation at folio 40 of the record limits the issue to the reasonableness of the time of presentation of the note, and in effect concedes that the note was properly presented. The case was tried on this theory.