Averbuck v. Becher

Appellate Terms of the Supreme Court of New York

Averbuck v. Becher

140 N.Y.S. 483

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 7, 1913

StatusPublished

This text of 140 N.Y.S. 483 (Averbuck v. Becher) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Averbuck v. Becher, 140 N.Y.S. 483 (N.Y. Ct. App. 1913).

Pincite

Opinions

GERARD, J.

This action was brought by plaintiff to recover $150 on a promissory note madb by one Nathan Becher to the order of Solomon Becher, and indorsed by the latter and by one Louis Drillich. Solomon Becher was the only defendant served.

The defendant Solomon Becher defended on the ground that this note for $150 had been paid, and that he was released thereon by an agreement with the plaintiff by which the plaintiff accepted two notes for $75 each made by the American Amusement Premium Company.

The only ground upon which plaintiff seeks a reversal of the judgment in favor of the defendants is that the trial justice erred in not permitting plaintiff to testify to a conversation had by plaintiff with Drillich. There was testimony given by Solomon Becher to the effect that he made the agreement with plaintiff, by which plaintiff was to receive the two notes for $75 each in return for the $150 note; that the plaintiff said that he did not have the $150 note, but would turn it over later. Mr. Drillich was present at this conversation, and plaintiff immediately turned the two notes over to Drillich. Mr. Drillich testified that he held the two notes in his possession, and, when the first of the notes became due, that he went to the bank, and certified it, and gave it to the plaintiff the next morning, and that the plaintiff had [484]*484it put through his bank, plaintiff, of course, receiving the money for the note.

[V] Plaintiff denied the conversation as to his taking the two notes for $75 each in return or payment for the $150 note, and was not permitted to testify that, when he received the certified note for $75 from Mr. Drillich, Drillich said something to him at the time, and was not permitted to testify what that something was. It being the claim of counsel that plaintiff could have shown that he received the note from Drillich for some other purpose, and, in fact, in payment of an obligation owing to him by Drillich, it seems to me that this evidence should have been admitted. Unexplained, the plaintiff having received the cash on one of the $75 notes, the inference would be almost irresistible that the story told by the defendants as to the delivery of these notes was correct, and I think that plaintiff should have been permitted to show how he came into possession of this note, and that he did not receive it in the manner alleged and for the consideration alleged by the defendants. It is true that no exception to the rejection of this evidence was taken, but no exception is necessary to permit the Appellate Term to. review a ruling of the trial court materially prejudicing the plaintiff. Schliep v. Box Board Co., 70 Misc. Rep. 228, 126 N. Y. Supp. 705.

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

SEABURY, J„ concurs.

Free access — add to your briefcase to read the full text and ask questions with AI

GERARD, J.

This action was brought by plaintiff to recover $150 on a promissory note madb by one Nathan Becher to the order of Solomon Becher, and indorsed by the latter and by one Louis Drillich. Solomon Becher was the only defendant served.

The defendant Solomon Becher defended on the ground that this note for $150 had been paid, and that he was released thereon by an agreement with the plaintiff by which the plaintiff accepted two notes for $75 each made by the American Amusement Premium Company.

The only ground upon which plaintiff seeks a reversal of the judgment in favor of the defendants is that the trial justice erred in not permitting plaintiff to testify to a conversation had by plaintiff with Drillich. There was testimony given by Solomon Becher to the effect that he made the agreement with plaintiff, by which plaintiff was to receive the two notes for $75 each in return for the $150 note; that the plaintiff said that he did not have the $150 note, but would turn it over later. Mr. Drillich was present at this conversation, and plaintiff immediately turned the two notes over to Drillich. Mr. Drillich testified that he held the two notes in his possession, and, when the first of the notes became due, that he went to the bank, and certified it, and gave it to the plaintiff the next morning, and that the plaintiff had [484]*484it put through his bank, plaintiff, of course, receiving the money for the note.

[V] Plaintiff denied the conversation as to his taking the two notes for $75 each in return or payment for the $150 note, and was not permitted to testify that, when he received the certified note for $75 from Mr. Drillich, Drillich said something to him at the time, and was not permitted to testify what that something was. It being the claim of counsel that plaintiff could have shown that he received the note from Drillich for some other purpose, and, in fact, in payment of an obligation owing to him by Drillich, it seems to me that this evidence should have been admitted. Unexplained, the plaintiff having received the cash on one of the $75 notes, the inference would be almost irresistible that the story told by the defendants as to the delivery of these notes was correct, and I think that plaintiff should have been permitted to show how he came into possession of this note, and that he did not receive it in the manner alleged and for the consideration alleged by the defendants. It is true that no exception to the rejection of this evidence was taken, but no exception is necessary to permit the Appellate Term to. review a ruling of the trial court materially prejudicing the plaintiff. Schliep v. Box Board Co., 70 Misc. Rep. 228, 126 N. Y. Supp. 705.

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

SEABURY, J„ concurs.

Cite This Page — Counsel Stack

Bluebook (online)

140 N.Y.S. 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/averbuck-v-becher-nyappterm-1913.

Opinions

Related

Cite This Page — Counsel Stack