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to recover the amount of the check. The court held that a subsisting contract to marry was not a good consideration for the check, and that such agreement could not be enforced, unless a contract was made having for its basis the consideration of marriage, and this was not shown to exist; that the check could not be enforced as a gift, as it transferred nothing. We recognize the rule of these cases. The distinction, however, is plain; for here the evidence is sufficient to warrant the jury in finding that the note was given in consideration of marriage, based upon an agreement entered into after the engagement. We conclude, therefore, that the oral agreement, if established, followed by marriage, was sufficient upon which to found a promise to pay money by the husband to the wife; that it was made in consideration of marriage, and not of the promise to marry; and that the jury would be authorized so to find.

It is evident, however, that such contract was void by the statute of frauds, as it was not in writing. It was not illegal or immoral. On the contrary, it was a contract of the highest character, the enforcement of which is favored by the courts. There was therefore nothing which prevented the husband from subsequently recognizing the contract and performing it, either in accordance with its terms, or in such form and manner as the parties might agree. The testimony tends to show that after the marriage, and in fulfillment of the contract, the husband gave to the wife the promissory note in question. When this was done it became an executed contract and the statute of frauds has not the slightest application to such a case (Remington v. Palmer, 62 N. Y. 31; Murdock v. Gilchrist, 52 N. Y. 242), and, having been performed, it was beyond the power of the husband to recall his act. In Newman v. Nellis, 97 N. Y. 285, the court in speaking upon this subject said:

"But we know of no rule which prevents a party from performing a promise which could not be legally enforced, or which will permit a party, morally but not legally bound to do a certain act or thing, upon the act or thing being done to recall it to the prejudice of the promisee, on the plea that the promise, while still executory, could not, by reason of some technical rule of law, have been enforced by action."

The cases deciding this principle are numerous. Van Valkenburg v. Croffut, 15 Hun, 147; Browne on the Statute of Frauds, § 116 et seq., and cases cited; Wood on the Statute of Frauds, § 235, and cases cited; Pool v. Horner (Md.) 20 Atl. 1036.

In Lloyd v. Fulton, 91 U. S. 479, 23 L. Ed. 363, it was held that while a verbal promise by the husband, in consideration of marriage, to make a settlement upon the wife, was void under the statute of frauds, and a verbal promise made thereafter was also void, yet, as the settlement was voluntarily made after marriage, it was good as against the husband, and also good as against creditors in the absence of fraud.

In Hammersley v. Baron de Biel, 12 Clark & Finnelley's Reports 1845, p. 45, it was held by the chancellor that, although a parol agreement or settlement in consideration of marriage was void under the statute of frauds, yet that a subsequent written acknowledgment of the promise was sufficient to take it out of the statute. It is evi

dent, therefore, that the delivery of the promissory note constituted a valid, executed agreement, based upon the consideration of marriage, and the note became as absolutely the property of the wife, as between herself and her husband, as though he had delivered to her the equivalent in money in fulfillment of the engagement he was under. It is evident, however, that the question of the statute of frauds is not, in any view, in the case. In order to be available, it would be necessary for the defendant to plead it (Matthews v. Matthews, 154 N. Y. 288, 48 N. E. 531), and this he has not done. This brings us to a consideration as to whether the execution and delivery of a promissory note by a third person in discharge of the obligation of the husband furnished a good consideration therefor, so as to make the promisor therein liable for the amount agreed to be paid. It has been held many times that a promise to pay by a third person a given sum to a creditor, in consideration of the discharge of an indebtedness held by such creditor, or of a colorable claim asserted against the debtor, furnishes a good consideration for the promise of the third person, and it will be enforced by action. Becker v. Fischer, 13 App. Div. 555, 43 N. Y. Supp. 685; Stack v. Weatherwax (Sup.) 5 N. Y. Supp. 510; T. National Bank v. Parker, 130 N. Y. 415, 29 N. E. 1094; White v. Hoyt, 73 N. Y. 505. If, therefore, it be conceded that the defendant delivered the note for the purpose of enabling his brother to discharge the obligation which he recognized as existing in favor of the wife, and the note was delivered pursuant to such understanding, the defendant cannot be heard to say that there was no consideration for the note. Under such circumstances the reception of the note by the plaintiff in discharge of the obligation enabled her to enforce the contract, and it is immaterial in support of such right whether any consideration passed from the brother to the defendant for the note or not. The note itself recited that it was given for value received, and ran directly to the plaintiff. This recital, therefore, imported value as moving from the plaintiff to the defendant, and the burden rested upon the defendant to show that he received no consideration therefor. Strickland v. Henry, 175 N. Y. 372, 67 N. E. 611; Rector, etc., v. Teed, 120 N. Y. 583, 24 N. E. 1014. Assuming that this presumption was successfully met by the defendant when it appeared that the plaintiff in fact gave no value therefor to the defendant, yet, in view of the testimony, it became a question of fact as to whether or not there was not a good consideration for the note which moved from the brother to the defendant. It certainly is a departure from recognized business conduct for one person to execute and deliver to another his promissory note, reciting it to be for value received, when in fact there exists no consideration therefor, and it is not to be used for business purposes. It is disclosed by the testimony that there had been business dealings between the defendant and his brother in previous years, and that in the course of such dealings he had executed and delivered to him several notes representing an actual indebtedness, and that the business transactions between them covered a part of six or seven years, and that a settlement of such business dealings did not take place until May 1, 1900. It, of course, goes without saying that, if there was a consideration moving from the

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brother to the defendant, it is sufficient to support the validity of the note in the hands of the plaintiff. That the note was given for a consideration is recited upon its face; that there had been notes for a valuable consideration moving from the brother in the course of their business transactions is conceded, and the brother is found in the possession of this note, conceded to have been voluntarily delivered by the defendant to him. The defendant is the party in interest, and the success of his defense rested upon his testimony. There was conflict between the testimony which he gave and the recital in the note. His evidence was much shaken. His interest, therefore, was of the highest character, and his credibility became under the evidence a question for the jury, and not one of law for the court to determine. Strickland v. Henry, supra; Volkmar v. Manhattan R. Co., 134 N. Y. 418, 31 N. E. 870, 30 Am. St. Rep. 678; Eastland v. Clarke, 165 N. Y. 420, 59 N. E. 202.

*

*

It was further claimed by the defendant that the note was diverted from the purpose for which it was given, and that it was delivered to his brother upon the express understanding that it was to be used only for the purpose of exhibition to the plaintiff and her family, and was not to pass from the possession of the brother. While he so testified, he also testified that in March, 1901, his brother wrote him that he was coming to Boston to see him on business; that subsequently he came, and stated to the defendant: "I want to have you give me a note for a certain amount. * * * I must have a note. I want to give a note to my family. * He said to me, he didn't know of any one else to call upon, and called upon me to give him this note, and I foolishly did so. * * * I mailed it to him." If this testimony is to be believed, it establishes the fact that at the time when the application for the note was made it was stated that it was to be given to his family. It is quite true that other statements were made by the defendant contradicting this, and tending to sustain the averment of the answer that the note was diverted; but this, like the preceding point which we have considered, became, under the evidence, a question of fact for the jury to determine. The credibility of the defendant's testimony was for them, and they were authorized to accept this statement and reject the others, and find therefrom that defendant knew the purpose for which the note was to be given, and delivered it to be used for such purpose, and if they so found the right of the plaintiff to enforce the note, based upon such facts, is unimpeachable. It follows from these views that the judgment and order should be reversed, and a new trial granted, costs to the appellant to abide the event. All concur.

NICHOLS et al. v. WILLIAMS.

(Supreme Court, Appellate Term. January 7, 1904.)

1. NEW YORK CITY-MUNICIPAL COURT-PROCEDURE-DISMISSAL OF ACTION. The District Court act (Laws 1857, p. 719, c. 344, § 45) provided that an action should be dismissed, with costs, where plaintiff voluntarily discontinued before final submission. This section became the consolidation act (Laws 1882, p. 353, c. 410, § 1382), and was continued in force by the

Greater New York charter (Laws 1901, p. 583, c. 466, § 1369), and has been construed as authorizing a dismissal even though defendant had filed a counterclaim. The Municipal Court act (Laws 1902, p. 1561, c. 580, § 248, subd. 1) contains identically the same provision, and, in section 362, p. 1594, provides that the act shall be construed as a continuation, so far as substantially the same, of existing laws, and not as a new enactment. Held, that plaintiff in Municipal Court may discontinue as of right on payment of costs, though a counterclaim is filed.

2. SAME-SUPREME COURT PRACTICE-APPLICABILITY.

Section 20 of the Municipal Court act (Laws 1902, p. 1496, c. 580), which provides that the provisions of the Code of Civil Procedure and the rules and regulations of the Suprem Court shall apply in the Municipal Court, where applicable and not in conflict with the provisions of the Municipal Court act, in which case such act shall govern, does not change the rule, for, if there is no such right of discontinuance in the Supreme Court, there is a conflict between its practice and that prescribed by the interpretation put on section 248 of the Municipal Court act (page 1561), and the latter must govern.

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by Daniel P. Nichols and others against Richard H. Williams. From a judgment of the Municipal Court for defendant_on his counterclaim, and dismissing the complaint, plaintiffs appeal. Reversed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and GREENBAUM, JJ.

George C. Coffin (Herbert Goldmark, of counsel), for appellants. Jones Cochrane, for respondent.

GILDERSLEEVE, J. When the case came on for trial, and at the opening thereof, the plaintiffs made a motion to discontinue the action upon payment of costs, which motion the court denied, and the plaintiffs duly excepted. The plaintiffs are nonresidents of this state, and brought the action against defendant to recover on certain promissory notes made by the defendant, in a transaction in which the defendant acquired from the plaintiffs possession of a cab under circumstances which may be treated as a conditional sale. The defendant set up a counterclaim in his answer for $500.

It was the contention of the plaintiffs that they had the absolute right to discontinue the action on payment of costs, notwithstanding the counterclaim. The learned trial court took the view that the application was addressed to the discretion of the court. Could we agree with this view, we should not interfere with the discretion as exercised. There is abundant authority in support of the plaintiffs' contention, commencing with Bidwell v. Weeks, 2 Hilt. 106, where it was held that a plaintiff in a District Court has a right to discontinue his action at any time before the cause is finally submitted, even where the defendant has interposed a counterclaim and seeks affirmative relief. The above case arose under section 45 of the District Court act (Laws 1857, p. 719, c. 344). This section became section 1382 of the consolidation act (Laws 1882, p. 353, c. 410). Section 1382 of the consolidation act was continued in force by section 1369

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of the Greater New York charter (Laws 1901, p. 583, c. 466), relating to the Municipal Courts. In Goldberg v. Victor, 26 Misc. Rep. 728, 56 N. Y. Supp. 1044, Mr. Justice Freedman wrote as follows:

"Such a discontinuance can be had at any time before the case is finally submitted. Section 1382, Consolidation Act. It has been held that the plaintiff may elect to be nonsuited before the coming in of the verdict (Peters v. Diossy, 3 E. D. Smith, 115; Langbein, Munic. Proc. 336, and cases cited), and that the plaintiff, before the action is finally submitted, has a right to discontinue it, and that it is then the duty of the justice to give judgment dismissing the action, with costs, and without prejudice to a new action, notwithstanding the defendant had interposed a counterclaim (Bidwell v. Weeks, 2 Hilt. 106)."

See, also, Rothenberg v. Filarsky, 30 Misc. Rep. 610, 62 N. Y. Supp. 721, and Heineman v. Van Stone, 34 Misc. Rep. 202, 68 N. Y. Supp. 803.

The new Municipal Court act (chapter 580, p. 1486, Laws 1902) worked no change in respect of the plaintiffs' right to discontinue.

Section 1382 of the consolidation act appears as section 248 of the new Municipal Court act, and subdivision I of the latter section, which relates to the question here discussed, is identical with subdivision I of the former section. Section 362 of the Municipal Court act provides as follows:

"The provisions of this act, so far as they are substantially the same as those of laws existing prior to September 1, 1902, shall be construed as a continuation of such laws, modified or amended, according to the language employed in this act, and not as a new enactment."

That is to say, since the language of subdivision 1 of section 248 of the Municipal Court act is identical with the language of subdivision I of section 1382 of the consolidation act, the former is to be treated as continuation of the latter. The cases construing subdivision I of section 1382 of the consolidation act would therefore govern the construction to be given to subdivision 1 of section 248 of the Municipal Court act.

Section 20 of the Municipal Court act, which reads as follows: "The provisions of the Code of Civil Procedure and rules and regulations of the Supreme Court as they may be from time to time, shall apply to the Municipal Court as far as the same can be made applicable, and are not in conflict with the provisions of this act; in case of such conflict this act shall govern"-gives no aid to the respondent's contention. If the provisions of the Code of Civil Procedure, or the rules or regulations of the Supreme Court, do not give a plaintiff an absolute right to discontinue, even though a counterclaim be interposed, then there is a conflict between such provisions, rules, and regulations, and the provisions of section 248 of the Municipal Court act, interpreted in accordance with section 362 of said act, by the decisions in the cases above cited. We are therefore bound, by the language of section 20 of the act, to follow the provisions of said act governing this case, instead of following the Code of Civil Procedure, or the rules or regulations of the Supreme Court.

We reach the conclusion that the plaintiffs had an absolute right. to discontinue the action upon payment of costs, notwithstanding