110 N.Y.S. 987 | N.Y. App. Term. | 1908
Lead Opinion
Defendant made his accommodation check in favor of one Clarke for $135, to be applied to a particular purpose. Said Clarke indorsed the check and diverted it from the purpose for which it was given by paying 'the same to plaintiff on account of a pre-existing debt of $411. Plaintiff had no reason for suspecting’ that it was an accommodation check or that it had been diverted from its purpose by Clarke. As an offset to plaintiff’s claim against Clarke for $411, the former owed the latter $70 for services. At the time of paying the check to plaintiff, Clarke told him that, in order to make the check good, it was necessary for plaintiff to give Clarke plaintiff’s own check for $70, which plaintiff did, in payment also of Clarke’s said claim against him for services. This $70 check was evidently given hy Clarke to defendant, as the check came back, when paid, with defendant’s indorsement on it. Plaintiff presented the $135 check for payment, but payment of the same was stopped by defendant. This action is brought to recover bn said check. The court gave judgment for defendant. Plaintiff appeals. The defense is based on the claim that, as the check was an accommodation one, which had been diverted from the purpose for which it was given, and had been
It seems that the court below arrived at a proper determination of the issues presented, and that the judgment should be affirmed, with costs.
Gerard, T., concurs.
Dissenting Opinion
The only defense interposed by the answer is that defendant loaned the check to Clarke for his pay-roll, but he, Clarke, diverted it toward the payment of an antecedent debt due to plaintiff, who parted with no value therefor.
There is no allegation or proof that plaintiff had knowledge that the check was given for Clarke’s accommodation. Plaintiff testified that when he received the check Clarke owed him $411, leaving the -indebtedness $275. ¡Notwithstanding this balance plaintiff, at the same time, gave Clarke his check for $70 for services, Clarke stating that the $70 check would make the $125 check good. Defendant testified that, notwithstanding Clarke’s indebtedness to him, he (defendant) frequently loaned him checks for pay-rolls which Clarke always repaid; and so, in this instance, for that purpose, he loaned Clarke the $135 cheek, which Clarke
The so-called diversion could not affect defendant’s rights, who had no interest in the use which Clarke made of his accommodation check. Daniel Neg. Inst., § 792. . Plaintiff’s position now is that he took the check on account of Clarke’s indebtedness — a good defense to Clarke, should plaintiff attempt to return the check and sue on the debt. The $135 check was given September 28, 1907. This action was not brought until November 8, 1907. During that period of forty-one days defendant made no objection to plaintiff’s possession of the check, and actually received from Clarke plaintiff’s check for $70 and $-21 in addition, toward repayment of the $135.
The defense is without merit in law or fact, and the judgment should be reversed.
Judgment affirmed.