#### The Equitable Trust Company of New York, Respondent, *v.*Thomas R. Were, Appellant.

(Supreme Court, Appellate Term,

December, 1911.)

Negotiable instruments—Indicia or requisites — General rules — Form and interpretation — Construction of instrument —Amount to be paid thereon.

An instrument by which the maker acknowledges the receipt from a third person of a policy of insurance and authorizes and requests the person to whom the instrument is directed to place, the policy in force and promises to pay to him,'or to Ms order, the first annual premium amounting to the sum stated in the instrument, is a negotiable instrument; and it is no defense to an action thereon that the defendant has not in fact received the policy mentioned therein.

In an action on such an instrument,, only the amount stated therein to be payable at a future fixed time is recoverable; and the holder cannot recover any sum mentioned therein which the instrument states is paid upon the date thereof by a check at that time enclosed to the person to whom the instrument is directed and delivered.

Appeal by the defendant from a judgment of the Municipal 'Court of the city of New York, borough of Manhattan, fifth district-, rendered in favor of the plaintiff.

*470Dulon & Roe (J. Brewster Roe, of counsel), for appellant.

McLear & McLear (Robert E. McLear, of counsel), for respondent.

Lehman, J.

The plaintiff sues upon an instrument assigned to it for value by one Archibald C. Haynes. The instrument reads as follows:

“ Mr. Archibald C. Haynes,

“ General Agent,

“ The Equitable Life Assurance Co., /

“ 25 Broad Street:

*“*Dear Sib.— I hereby acknowledge having received from Mr. Rosenbaum policy No. 1316119, being for $5000 on'my life in the Equitable Life Assurance Society. You are authorized and requested to place the said policy in force from this date and I promise to pay to you or to your order the first annual premium amounting to $25'6.55 as follows:

“ Check enclosed, $125.00

“ On Dec. 1, 1904, ' . 131.55'

“ Very truly yours,

*“*Thomas R. Were.”

The defendant has set up various defenses which' would be sufficient to prevent a recovery, if the instrument were still'in the hands of the original payee, but cannot be.set up against a holder in due course of a negotiable instrument.

The Appellate Division'has recently held, in the case of Equitable Trust Company v. Newman, that an instrument in this form is a negotiable instrument and that, where the plaintiff has paid value for it before maturity, it is *&*holder in due course. The. defendant claims, however, that this case is not governed by the Newman case, owing, to material differences in the record. It seems to me, however, that we are absolutely concluded by the decision in that case. The defendant claims "that he has never received the policy of insurance; while, in the Newman case, it was shown that the defendant had received the policy. This difference is imma*471terial. The defendant has admitted in a.negotiable instrument that he did receive the policy, and thé admission must be considered binding upon him. If the instrument through this admission becomes on its face a negotiable instrument, its character cannot be varied by parol testimony. I also cannot find that the holder in this case had any further notice of defects in the instrument than the holder had in the Hewman case.

It seems to me, however; that the trial justice erred in giving judgment for the sum of $256 with interest from December 1, 1904. He held that the defendant was not entitled to a deduction of $125 unless he pleaded and proved payment of this amount. I cannot agree with this view. The plaintiff sues' upon a written agreement to pay a sum of money at a fixed time. It introduces this instrument in evidence and the .instrument on its face shows that, while it is a promise to pay $256, only $131 is payable at a future fixed time, and the remainder has been provided for by enclosure of a check. The instrument itself regarded as a negotiable instrument, therefore, calls for a future payment of only $131; and the holder can recover no more than the instrument calls for.

The judgment should, therefore, be reduced to the sum of $131, with interest from December 1, 1904, and costs of the action, and, as modified, affirmed, without costs.

Giegerich and Pehdletoit, JJ., concur.

Judgment modified, and as modified affirmed, without costs.