Tischler v. Shurman

49 Misc. 257 | N.Y. App. Term. | 1906

Scott, J.

There is no doubt that the check sued upon ■was wholly without consideration, and that the original holder could not have maintained an action thereon. Under ■such circumstances, it is incumbent upon the holder to show •the circumstances under 'which the paper came into his possession and that he acted in good faith. Evidence that he "paid value for the check, although entitled to great weight, "is not conclusive of the fact of bona fides. Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191. In the present •case there are many suspicious circumstances tending to •show that the transfer of the check to plaintiff was made merely for the purpose of avoiding the defense of lack of •consideration. The original payee of the check was available to plaintiff as a witness, and, indeed, was in court on the day of the trial; he was a client of the plaintiff’s attorney; he was named as defendant but was never served. and the attorney who acts for the plaintiff in this action has never acted for him in any other matter. Added to this is the fact that the plaintiff cannot recollect on what day of the week he cashed the check, or on what hour of the day. The failure of the plaintiff to call Wresensky, the original payee, leaves the bona fides of the transaction unsustained and forces the conclusion that the plaintiff has not satisfactorily explained the circumstances under which he received the check.

Blanchabd and Dowling, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.