Heermans v. . Ellsworth
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department affirming a judgment in favor of plaintiff, entered upon a verdict. (Beported below 5 T. & O," 605 ; 3 Hun, 473.) This action was brought by plaintiff as trustee claiming under a deed in trust executed by one Joseph Fellows of his property, real and personal, to recover a balance of account for moneys loaned by said Fellows to defendant.
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Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department affirming a judgment in favor of plaintiff, entered upon a verdict. (Beported below 5 T. & O," 605 ; 3 Hun, 473.) This action was brought by plaintiff as trustee claiming under a deed in trust executed by one Joseph Fellows of his property, real and personal, to recover a balance of account for moneys loaned by said Fellows to defendant. The defence was payment, and defendant proved payment to Fellows after the execution of the trust deed. Prior to the payment an action was brought by Fellows…
1Opinion of the CourtMiller, J.
There was no error in the charge of the judge upon the trial, that the burden of proof was upon the plain tiff,j upon the question of notice, and that it was incumbent upon him to establish the fact of notice; nor in the refusal to charge! that the burden of proof was upon the defendant to show* that the payment was made without notice and in good faith. The debt was due to Fellows, and he being the creditor, it is a fair legal presumption that such creditor was lawfully entitled to receive payment. If an assignment was made by Fellows to the plaintiff, it was the duty of the assignee to…
2Cases cited1 opinion
- Bush v. . LathropNew York Court of Appeals · 1860
3Cited by17 opinions
- Brewster v. . CarnesNew York Court of Appeals · 1886
- Myers v. Albany Savings BankAppellate Division of the Supreme Court of the State of New York · 1946
- Wangner v. . GrimmNew York Court of Appeals · 1902
- Young v. UpsonU.S. Circuit Court for the District of Southern New York · 1902
- In re the Estate of LynchNew York Surrogate's Court · 1934
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