Scudder v. Kelly

140 N.Y.S. 611 | N.Y. App. Div. | 1913

Per Curiam:

The defendants’ case rests to a great extent upon the accuracy of their books, and in many respects the books were kept loosely and are not the most satisfactory evidence. Many of the charges are, “balance on bill,” dr “bill,” and one “Bill to date this spring $149.93.” Evidently the books as to many items are not the original entry of-the actual transactions. , Recovery was had upon á note, dated January 22, 1899, for $100, payable sixty days after date. The Statute of Limitations is a good defense to the note. The evidence of the payment of $7, which defendants claim was indorsed thereon, is not satisfactory, and it is not' clear that the note has not otherwise been included in the accounts. If the $7 was paid, as claimed, it does not save the note. (Hughes v. Eddy Valve Co., 147 App. Div. 356, 360.). The finding that $7 was paid upon the note is against the ¡evidence; also the finding that there is anything due upon it: The 4th finding, that' there was an examination of the account May 9, 1903, and that there was found .due the' defendants $171.73, is unsatisfactory and against the evidence, this court finding, that there was no such examination and statement of account. The fact that on May 15, 1906, defendants rendered to the plaintiff a bill for $230.66 and a note for that amount which they requested him to sign is convincing evidence that' at that time the total indebtedness of the plaintiff did not exceed that amount. The 2d, 3d, 4th, 5th and 7tli findings of fact are disapproved of as agaiinst the evidence.. The judgment should, therefore, be reversed on the law and the facts, the referee, discharged, and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment reversed on law and facts, referee discharged and new trial granted, with costs to appellant to abide event. The 2d, 3d, 4th,' 5th and 7th findings of fact are disapproved of as against the evidence.