110 N.Y.S. 223 | N.Y. App. Term. | 1908
Plaintiff sues as holder in due course of a check for $23 made and delivered by defendant to one Grossman and by him indorsed in blank. Defendant alleged and proved that the check was given to Grossman by mistake. He also alleged that plaintiff before the delivery to him jof the check had knowledge of its infirmity and that it was delivered to him without consideration. Plaintiff testified that the check was paid to him for an antecedent debt due him from Grossman. Defendant produced a witness, who was asked what he knew about this check getting to Rosenthal (plaintiff), to which the witness replied that he had a conversation with plaintiff at his store, during which plaintiff said to him:
“See, I asked Grossman for a favor, for a loan, and he gave me two checks. ■One is paid and the other is not paid.”
It is true that the witness did not specifically describe the checks which plaintiff mentioned to him, nor was he specifically interrogated as to the identity of those checks. A reading of the record would justify the inference, however, that the parties at the trial deemed that lie had reference to the check in suit, particularly so as plaintiff admitted upon cross-examination that he had returned the check to •Grossman. Plaintiff did not attempt to contradict the testimony of
Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.
