90 N.Y.S. 205 | N.Y. App. Div. | 1904
Lead Opinion
The plaintiff, as the assignee of one Nina Kaufman, sued the defendants, copartners, to recover a sum of money which he alleges his assignor left on deposit with them under an agreement that it should be paid back to her on demand with such profits as might have been earned upon that sum of money while it was used in the copartnership business. The allegations of the complaint in this regard were denied by the defendants. It appeared in evidence that Miss Kaufman being about to marry one Max Rosenshine, a brother of the defendants, was presented with the sum of $2,000 as a wedding present. The gift was represented by a check or checks — it is immaterial which—and the fact is conclusively proven that the gift was to her. The checks were drawn by the defendants in their firm name. It is admitted that, shortly after her marriage she delivered the check or checks to the defendants and that serious discord had arisen between her and her husband. The question of fact in the case is the following: Under what agreement were the checks delivered to the defendants ? The plaintiff’s version is as above stated. The claim of the defendants is that the plaintiff’s assignor surrendered the check or checks unconditionally, and that she did so in view of her relations with her husband, she being convinced that she ought not to retain the gift, it having been made to enable her to set up housekeeping with her husband in New York city.
The evidence relating to the issue of fact is very conflicting and is unsatisfactory on both sides, but there was enough in the proofs made on behalf of the plaintiff to authorize the jury to find in her favor. Apart from other matters it appears that negotiations were had for some time, between the plaintiff’s assignor and the defendants or one of them, with respect to monetary relations between their brother Max Rosenshine and his wife. There was a sum of
But there is some testimony in the record indicating that in fixing the sum of $5,500 as the amount to be paid to Mrs. Max Rosenshine (Nina Kaufman) the item of $2,000 was not considered. The plaintiff, who is the brother of his assignor, testifies that a larger amount had actually been agreed upon between himself and the defendants before the time of the alleged interview at which Dr. Frankenburg was present. On the whole testimony we cannot say that the verdict should be disturbed as against the evidence.
It is urged by the defendants that the judgment should be reversed because of erroneous rulings of the trial justice. One of those rulings only requires consideration. In her action for divorce, the plaintiff’s assignor stated in an affidavit which was presented to the court on a motion for alimony and counsel fee, that she was without any means of support; that she had no separate property and was dependent upon her relatives for her maintenance. It was contended by the defendants that that statement in the affidavit being true, she could not have had $2,000 in the possession of the
None of the other exceptions requires special consideration, and the judgment and order appealed from must be affirmed, with costs.
O’Brien, Hatch and Laughlin, JJ., concurred; Yah Brunt, P. J., dissented.
Dissenting Opinion
(dissenting) :
I dissent. The exception to the exclusion of the question to the attorney for plaintiff is fatal. Where the client has endeavored to
Judgment and order affirmed, with costs.