#### Edward Harding, Respondent, *v.*Thomas J. Jenkins et al., Appellants. (Action, No. 1.)

Appeal from a judgment of the General Term of the City Court affirming a judgment entered upon a verdict directed at Trial ,Term.

*828Thompson & Maloney (William P. Maloney, of counsel), for appellants.

Roger Foster, for respondent.

MacLean, J.

In an action in the City Court upon a promissory note, brought by one to whom the indorsee had indorsed and delivered it after maturity, the note was produced by the plaintiff, and, after evidence given on behalf of each side, the justice at Trial Term directed a verdict for the plaintiff; from an affirmance by the General Term of the judgment hereon comes this appeal. According to the testimony of one of them, the one who verified their answer, wherein all allegations of fact were made positively and not upon information and belief, the defendants made and delivered a mortgage of certain property in trust to pay their indebtedness to certain creditors, all of whom were thereafter paid in full. Prior to the making of the trust mortgage, one Kerby held notes of the defendants for their indebtedness to him, and to him were given, from time to time, notes in renewal, “ given as accommodation paper to use while he had security given to help carry that amount of indebtness so that he could handle it better.” The note upon which this action was brought was a renewal of a renewal of one or more notes given to Kerby by defendants for their indebtedness for stoves and furnaces, and which original notes, as well as the renewals and this note, had been transferred by Kerby to Sheppard & Co., the manufacturer of the stoves and furnaces.

It was alleged in the answer that Kerby was the agent and representative of Sheppard & Co. and took the notes as such agent and representative, that the indebtedness to Kerby was the indebtedness to Sheppard & Co., that the trust mortgage was given to secure the claim of all the creditors of the defendant, including the claim of Kerby and Sheppard & Co., and that the trust mortgage • and security were accepted by Sheppard & Co. and Kerby as security for said indebtedness, and that Sheppard & Co. knew of the satisfaction of the mortgage and that the note sued upon herein was paid by the defendants. Of none of these allegations in the answer was any evidence given, although the defendant, who, as mentioned above, verified the answer, was examined and cross-examined and even allowed, contrary to objection, to be recalled and re-examined in chief. He testified that he had spoken to Sheppard about the mortgage, but not that it was exhibited, or that its contents were made known to Sheppard; that he had *829spoken to Sheppard of notes, but they were the notes of others and, apparently, the notes of the wives of the defendants. The names of the persons for whom the trust mortgage was made was stated in it, but in it there was no mention of Sheppard & Co. There was no testimony to show that Sheppard & Co. took this note or any note with knowledge of its misuse, if any misuse there were of it by Kerby, and the only evidence respecting the alleged agency of Kerby was given by Mr. Sheppard, who said that he sold stoves in' the city of New York to Mr. Kerby, who was transacting business there on his own account.

The judgment of the General Term of the City Court should be affirmed, with costs to the respondent.

Freedman, P. J., and Leventritt, J., concur in result.

Judgment affirmed, with costs to respondent.