123 Misc. 522 | N.Y. App. Term. | 1924
This action is upon a check made by one Picker to the order of plaintiff, which check was certified by defendant. The separate defense, which is also pleaded as a counterclaim, is to the effect that plaintiff’s agent represented to Picker that plaintiff needed $500 to pay its landlord for the supply of electric current in plaintiff’s building, part of which was occupied by a corporation in which Picker was interested; that Picker, upon the statement that the money would be used to pay the landlord and to prevent Picker’s store from being deprived of light, gave the plaintiff the check in suit. As matter of fact plaintiff had the check certified forthwith and gave its landlord its own worthless check with the result that the electric supply in Picker’s store was actually discontinued.
In passing it may be remarked that there seems to be no reason why Picker could not have set up and assigned his cause of action against plaintiff for a return of the money loaned, for from the pleadings that appears to have been the nature of the transaction.
Order modified by striking out so much thereof as strikes out defendant’s separate defense, and also by striking therefrom the adjudication that plaintiff is entitled to judgment and the direction for the entry of judgment for plaintiff, and order as so modified affirmed, without costs to either party.
All concur; present, Bjjur, Mullan and Levy, JJ.
Order modified and as modified affirmed.