#### George R. Bristor, Respondent, *v.*The Manhattan Real Estate Company, Appellant.

(Supreme Court, Appellate Term,

March, 1912.)

Evidence — Parol evidence — Admissibility of parol evidence to vary or contradict written instruments in general.

Negotiable instruments — Bona fide holders — Taking in due course of business — Actions.

Parol evidence is inadmissible to show that a promissory note was made and delivered as part of a separate contract for. an extension of time for the payment of the note at maturity.

In an action by the payee of a promissory note given in settlement of an alleged claim for professional services as an attorney at law, the maker under an answer properly pleading the facts is entitled to show that the note was void for fraud.

Appeal by defendant from a judgment of the City Court of the city of ¡New York rendered in favor of the plaintiff by direction of the court and also from an order denying a motion for a new trial.

James Westervelt, for appellant.

. George R. Bristor, in person, for respondent.

Guy, J.

The defendant appeal's from a judgment in favor of plaintiff, entered by direction of the court, for $845.38 in an action on a promissory note, and from an-order denying a. motion to set aside the verdict and for a new trial.

The making of the note is admitted and that it was not paid at maturity. The answer sets up two separate defenses: First, that the note was not delivered unconditionally, but as a part of another and separate contract for an extension of time, at maturity, for payment of the note. This alleged agreement would vary the terms of the written contract and, as such, would not constitute a valid defense to the note. Evidence on this point was properly excluded. The second *633defense interposed is that the note in suit was given in settlement and adjustment of an alleged claim presented by plaintiff against defendant for professional services as an attorney at law, and that in rendering, or pretending to render, such alleged services, the plaintiff had been guilty of a gross fraud upon the defendant, his client, in that he made false representations as to certain material facts, and concealed from the defendant, his client, certain other material facts as to the matters in regard to which he had been retained as an attorney, and, as a result of said false representations and concealment, plaintiff was -induced to and did agree to a settlement with one Bayley, which settlement was greatly to defendant’s injury; the answer also sets forth that the plaintiff, throughout the negotiations in which he pretended to represent the defendant, acted as the attorney of Bayley, with whom he was conducting negotiations ostensibly on behalf of the defendant, and that throughout these entire negotiations the plaintiff deceived and defrauded the defendant, his client; and the defendant contended upon the trial, and contends upon this appeal, that, as the only consideration for the note in suit was such fraudulent services as plaintiff pretended to perform for the defendant, the note was without consideration and void. Evidence was offered in support of this allegation of the answer and was excluded by the trial justice under an exception by the defendant. The trial justice erred in excluding such evidence. If established by competent proof, the fraud on the part of the plaintiff, alleged as a defense, would have constituted a good legal defense to the action on the note. '' 'Fraud cuts down everything’ is the sharp phrase of Lord Chief Baron Pollock in an English case; and between parties it at once destroys the validity of a bill or note into the consideration of which it enters. * * *. There was, in fact, no contract, and proof of the fraud at once defeats the action on the bill, note or check.” Daniel Beg. Instr. 216. As between the original parties a promissory note has no more sanctity or binding effect than other forms of contract; and, where fraud enters into and forms the sole consideration for the making of the contract, the fraud vitiates and destroys the contract. As fraud was *634properly pleaded, the learned trial justice erred in excluding evidence thereof and in directing a verdict for the plaintiff.

Seabury and Bijur, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.