56 N.Y.S. 168 | N.Y. App. Div. | 1899
The action was brought to have an account stated (by which it appeared that $327 was due to the plaintiff) re-opened and adjusted, on the ground of fraud on the part of the defendant previous to the stating of the account. The. plaintiff owned property on Clinton street and Rutger place, and, being desirous of erecting a building thereon, made an agreement with the defendant by which the latter was to advance money as required for the contractor, and in return was to receive certain mortgages and cash payments. The account stated showed that the defendant claimed:
For cash advanced....................................... $15,400
Interest ................................................. 350
Fees, etc................................................ 1,900
Total ..................................................... $17,650
And that he had received from the plaintiff:
Mortgage ............................................... $16,000
Mortgage ..........'.........................'............ 1,000
Cash .................................................... 977
Total ..................................................... 17,977
Leaving a balance due the plaintiff of...................... $ 327
The account was accepted by the plaintiff as true; but the complaint alleges that the plaintiff subsequently discovered that the
It appears that the plaintiff had made a written agreement with one Hoffman, a mason, who was to erect the building, aided by Margowitz, who was to do the carpenter work, by which the plaintiff agreed to pay Hoffman $29,900 for certain work. The plaintiff claims that the defendant had instructed Hoffman to increase his estimate, which was first given to the plaintiff at $27,400, to $29,900, the defendant to have the additional $2,500 as his bonus; that this was done, the plaintiff believing that $29,900 was really necessary for the work; that, in the first payment made, the defendant drew a check for $3,500, which the plaintiff indorsed and gave to Hoffman, who immediately returned it to the defendant, and received back a check for $1,000, the defendant thus securing to himself $2,500 fraudulently. This statement was sworn to by the mason, Hoffman, and the carpenter, Margowitz, but was denied by the defendant, who testified that there was never any $1,000 check drawn. The defendant did not, however, produce his check stub book, although a subpoena duces tecum was served on him to do so; he alleging somewhat incoherently that he could not find the stub book,—that it was lost or destroyed. The check for $3,500 was indorsed by the plaintiff, Hoffman, and the defendant’s brother-in-law, Rosenthal, and the last named presented it at the bank for payment. Rosenthal was not produced as a witness, but the defendant testified that Rosenthal paid to Hoffman the amount of the check, less the sum of $925, which was paid to the defendant: for lawyer’s fees, etc. The defendant further testified that the plaintiff had told him to deduct the fees, and that Hoffman should pay them out of the first payment, the plaintiff having so agreed with Hoffman. This latter agreement is deided, and the original written agreement between the plaintiff and defendant expressly provides that the defendant should pay such expenses, and in fact the stated account includes them. In addition to evidence bearing upon the one question presented on this appeal, as to the right of the plaintiff to recover the sum of $2,500, which he insists the defendant had not advanced to him, but which the defendant claimed he had advanced, there was considerable testimony regarding the other items of the account, which were thus, to a large extent, re-examined. At the close of the case the learned trial judge, relying upon his recollection of the testimony and the credibility of the witnesses produced, and without further taking the case under consideration, then and there decided that the plaintiff was not entitled to any equitable relief. Ordinarily, where such a conclusion is reached upon conflicting testimony, we should not interfere. By a review of the record, it appears reasonably certain that upon the trial, which required a consideration of a number of other items in the account besides the one of $3,500, which included the $2,500 in dispute, no satisfactory determination as to this item was reached; owing, no doubt, to the confusion produced by the
The judgment should therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.