Third Department, May, 1908. [Vol. 126. plaintiff that the dividends and not himself should pay this note. The parties, by their contract, have established that as between them there is a difference between the payment of the note at once and the payments of renewals for it until the mine produces the expected results. The court should not do violence to their intentions, but should treat the matter as the contract treated it—that is, that there is a material difference between the continued renewal of a note and the present payment of it. We should not indulge in refined distinctions to relieve the defendant of the burden of his contract and to deprive the plaintiff of the only benefit which could be derived from it. If the defendant may with impunity violate this agreement, the court is encouraging double dealing and depriving a solemn contract between the parties of all the force which they intended to give it. The history of the late panic is an ample illustration that a business man who has made definite contracts for the renewal of his bank paper is in a very advantageous position, and that he would have suffered great damage if by a violation of his contracts he had been compelled to raise money to pay notes thus provided for. We cannot say, and we are not called upon in behalf of the defendant to assume, that the cost of the renewal of a bank note perpetually, where there is no obligation to pay the principal, will be such that it is equivalent to the present payment of the principal. The future is so uncertain and the financial horizon is so clouded that we cannot forecast them. Justice is done by disregarding the fact that the note was discounted at the bank, and treating it as a note received by the defendant for the sale of his stock which by agreement the plaintiff was not personally to pay and which by trick the defendant had compelled him to pay. It needed no renewals and required no payment for renewals. The court can do justice to these parties without determining that the first fault on the part of the defendant was in the failure to renew the note the last time. Previously, by a failure to renew one of the notes, he had obtained in some way the plaintiff's note for $500 to be used in renewal, but discounted it for his own. benefit, while the plaintiff still remained liable upon the $2,500 note. It is not difficult to determine that his effort from the first was to compel plaintiff to pay the note. The sale of this stock with App. Div.] Third Department, May, 1908. the guaranty certificate, the defendant's agreement, and the statements he made, show that the transaction was at least peculiar and throw a great doubt upon the fairness of the defendant's conduct from the beginning, and indicate that the stock had no substantial value. Without considering when the defendant began to act unfairly, it is evident that by trick he has obtained $2,500 from the plaintiff and had the benefit of it, and has compelled the plaintiff to pay $2,500 which he had led the plaintiff to believe he would never be required to pay. The language and the scheme were the defendant's, and should be construed against him, and he should be held to the construction which he wanted the plaintiff to put upon it. If the defendant is now required to restore to the plaintiff the $2,500 and the interest, he is still entitled to receive the first $2,500 which the plaintiff realizes from the dividends on the stock. The parties are just where the contract put them, except the defendant, by refusing to renew the note according to the agreement, has lost the further benefit of the plaintiff's credit. The fact that the stock stands in the plaintiff's name will probably never benefit him or injure the defendant. But it is said that the plaintiff has paid several renewals and has thus construed the contract as creating an obligation so to do. But the defendant paid the discount upon the first note. The plaintiff denies that he understood that the note was to be discounted at the bank. If that is so, it is not strange that when he found it had been discounted he was willing to pay the renewal rather than have any controversy at that time. Four months after the transaction, and at the first renewal, he probably continued to believe the story of the defendant, and as he was soon to be so rich from the mine perhaps he did not feel like questioning a small matter. Both parties have been sworn and have been permitted to give their version as to just what was said when the contract was made, and neither affirms that anything was said as to who was to pay the renewals. Their evidence leaves nothing to inference, except the interpretation of what they said and wrote at the time. It is quite probable that both were not thinking the same thing, although their statements do not materially differ. Treating the stock and note as the defendant's his duty to pay the renewal is plain, and the fact that the plaintiff may have misunderstood or did not insist upon Third Department, May, 1908. [Vol. 126. his legal rights four months after the contract was made should not now alter the legal rights of the parties, especially in favor of the defendant who has violated his contract and wronged the plaintiff. I, therefore, think the plaintiff is entitled to recover the amount paid, with interest, and that the judgment should be reversed upon the law and the facts and a new trial granted, with costs to the appellant to abide the event. CHESTER, J., Concurred. CHARLES B. ANDRUS, Appellant, v. JOHN C. HARRIS, Respondent. Third Department, May 22, 1908. Slander-defenses - demurrer - costs. In an action for slander, facts showing provocation are good as a partial defense; but a demurrer will be sustained to an allegation of facts neither provocative nor brought to the defendant's knowledge before the slander. Although demurrers to various defenses have been sustained, an amendment should be conditioned on the payment of a single bill of costs. KELLOGG, J., dissented in part. APPEAL by the plaintiff, Charles B. Andrus, from so much of an interlocutory judgment of the Supreme Court in part in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 14th day of November, 1907, upon the decision of the court, rendered after a trial at the Saratoga Special Term, as overrules the plaintiff's demurrer to the third and fifth answers and defenses set up in the amended answer to the first cause of action set up in the complaint. William S. Ostrander, for the appellant. W. E. Bennett, for the respondent. PER CURIAM: In our opinion the third defense is good as a partial defense, as it alleges facts which may be considered a provocation for the utterance claimed to be slanderous. The fifth defense is not good, because the matters alleged are neither matters of provocation, nor are they shown to have been brought to the knowledge of the App. Div.] Third Department, May, 1908. defendant before the utterance alleged to be slanderous. Judgment should, therefore, be modified so as to sustain plaintiff's demurrer to the fifth defense, with leave to amend upon payment of costs of the demurrer. Only one bill of costs, however, is to be charged the defendant for the privilege of amending, if the defendant shall avail himself of the right to amend the second and fourth defenses under the privilege granted him in the original judgment. As thus modified the interlocutory judgment is affirmed, without costs of this appeal. All concurred, except KELLOGG, J., who considered the fifth defense proper in mitigation. Interlocutory judgment modified as per opinion, and as so modified affirmed, without costs of this appeal. JOHN W. SHOOK and FREDERICK E. SHOOK, Appellants, v. CATHERINE Fox, Respondent, Impleaded with EMMA KIRKPATRICK and Others. Evidence Third Department, May 22, 1908. transactions with decedent Code of Civil Procedure, $$ 829 and 830- deposition of deceased witness-books- hearsay - presumption. The defendant in an action of ejectment should not be allowed to give evidence as to a contract between the plaintiff's deceased ancestor and a third party made for her benefit; but under the circumstances of the case the error will be disregarded where the same evidence is given without contradiction by a third party through whom the defendant does not claim. The evidence of a witness through whom the defendant does not claim is admissible although taken de bene esse while the witness was on his death bed, in another action of ejectment brought by the life tenant of the estate of which plaintiffs are remaindermen against the same defendant. Where parties go to an attorney at law intending to draw a given paper, there is a presumption that the document as drawn was of a nature that would accomplish the result desired. In such action of ejectment the books of the plaintiff's deceased ancestor are properly excluded as hearsay. KELLOGG and COCHRANE, JJ., dissented, with opinion. APPEAL by the plaintiffs, John W. Shook and another, from a judgment of the Supreme Court in favor of the defendant Third Department, May, 1908. [Vol. 126. Catherine Fox, entered in the office of the clerk of the county of Rensselaer on the 26th day of October, 1907, upon the decision of the court, rendered after a trial at the Rensselaer Trial Term, a jury having been waived, dismissing the complaint. H. D. Bailey, for the appellants. John B. Holmes, for the respondent. SMITH, P. J.: In 1901 John Striker died with the record title to a lot fifty feet front upon Fourth avenue, in the village of Lansingburg; the lot was a double lot with a double house thereupon; the north half Striker obtained by purchase in 1897; the south half thereof, which is the property in litigation here, Striker obtained from Anna M. Hall in 1894. These plaintiffs claim under the will of Striker. The material part of that will reads as follows: "First. I give at the decease of my wife the lot owned by me on Fourth Avenue in Lansingburgh, N. Y., between Seventeenth Street and Eighteenth Street, to John W. Shook, for and during his natural life; and at his decease I devise the same in fee to John Shook and Frederick Shook, sons of said John W. Shook, equally, share and share alike;" and these plaintiffs as remaindermen claim the title to the land in controversy. The defendant, on the other hand, claims that she is the lawful owner of said premises, and that the lot referred to in the will of Striker was the north lot purchased in 1897, and did not include the south part of this double lot which she owns. Her evidence in part is that this property was once owned by Charles Kirkpatrick, subject to a mortgage of $1,000 held by Anna M. Hall; that after the foreclosure of this mortgage had been commenced Striker proposed to Kirkpatrick that if he would deed his equity in the premises to defendant he, Striker, would purchase this mortgage and give it to defendant, so that defendant might have a home; that Charles Kirkpatrick and his wife, pursuant to this agreement, did deed the said premises to defendant, but that Striker did not purchase the mortgage, but allowed the foreclosure to proceed and the property to be bought in by the said mortgagee, under an agreement by which he was to obtain the same from her upon payment |