89 N.Y.S. 607 | N.Y. App. Div. | 1904
The complaint in this action alleges the copartnership of August Kress c% Co., the defendants, and on information and belief avers that on or about the 4tli day of June, 1903, at Bayonne. City, in the State of New Jersey, the defendants, under their said firm name, for value received, made their check in writing, dated on that, day, and directed the same to the Bayonne Bank, and thereby required that said bank pay to one E. W. Johnson or order.$114.96, and delivered it to said Johnson ; that thereafter the said Johnson indorsed said check, and by an instrument in Writing duly assigned the said check and all moneys due or to grow due thereunder to this plaintiff, and delivered said instrument of assignment and said check to this plaintiff, who is the holder and owner thereof; that the defendants stopped payment on the said check; that payment had been demanded and refused, and that there was still owing to the plaintiff the sum represented by the check. The complaint demands judgment for the amount of the check, with interest and costs.
The answer alleges that the defendants “ have no knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph or section marked ‘III’ ” This is the only denial contained in the answer, and relates wholly to the alie-.
The motion for á new trial upon the exceptions! and upon the: ground of newly-discovered evidence was properly denied,, for the. reasons- which, we have already suggested, and' because, the alleged newly-discovered evidence has no- relation to the only issue which, was before the court.
The judgment and order appealed, from should be. affirmed, with costs.. !
All concurred. !
Judgment and order,of the Municipal Court affirmed, with costs.