City of Cohoes v. Cropsey 55 N.Y. 685

The City of Cohoes, Appellant, v. Gabriel M. Cropsey, Impleaded, etc., Respondent.

(Argued January 28, 1874;

decided February 16, 1874.)

This was an action upon a promissory note given by defendant, Cropsey, payable to the order of defendant, Ell-maker, and by him indorsed to the chamberlain of plaintiff. The defence was that the note was given upon a settlement of a claim against Ellmaker for converting certain bonds belonging to plaintiff, and upon agreement not to prosecute him criminally therefor. The referee found that the bonds were converted by Ellmaker; and that Mr. Harmon, one of the plaintiff’s water commissioners, represented to defendant Cropsey that, unless the matter was settled or secured, proceedings of a criminal nature would be instituted; and that said Cropsey was requested to sign the note to save Ellmaker from such prosecution, and that he did sign it for that purpose; and as a conclusion of law he found that the consideration was illegal and the note void. Held, that inasmuch as it was not found and did not appear that Harmon had any *686authority to act for plaintiff, or to make any agreement to abstain from a criminal prosecution, nor did it appear that he received the note and delivered it to plaintiff, or that he ever had it in his possession, or that the plaintiff ever had any notice of any instrumentality by him in procuring its execution, and it appearing that plaintiff had a valid demand against Ellmaker, the presumption was that the note was received in consideration thereof rather than in pursuance of any unlawful agreement with Harmon; and that the conclusion of law, therefore, of the referee, from the facts found, was error.

Samuel Hand for the appellant.

Rufus W. Peekham for the respondent.