Ball v. Elliott

Appellate Terms of the Supreme Court of New York

Ball v. Elliott

143 N.Y.S. 938

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 13, 1913

StatusPublished

This text of 143 N.Y.S. 938 (Ball v. Elliott) 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

Ball v. Elliott, 143 N.Y.S. 938 (N.Y. Ct. App. 1913).

Pincite

Opinion

BIJUR, J.

Plaintiff’s assignors were proprietors of a hotel, from whom defendant’s decedent had purchased articles and borrowed money in the aggregate of $281.95, for which this action is brought. The answer, in addition to general denials,-, sets up as a defense and counterclaim the payment by decedent, on the same day on which the foregoing indebtedness was incurred, of over $500.

After plaintiff had proved his case, the defendant merely put in evidence two checks, aggregating $500, to the order of plaintiff’s assignors, and indorsed by them, but signed by defendant’s decedent as executor of a named estate. Whatever presumption of fact might have arisen from the giving of his individual checks by defendant’s decedent under the circumstances (see 30 Cyc. 1271-1273), it can hardly be claimed, I think, that any presumption of payment of his individual debt arises from the giving by defendant’s decedent of checks of an estate of which he was a trustee.

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

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BIJUR, J.

Plaintiff’s assignors were proprietors of a hotel, from whom defendant’s decedent had purchased articles and borrowed money in the aggregate of $281.95, for which this action is brought. The answer, in addition to general denials,-, sets up as a defense and counterclaim the payment by decedent, on the same day on which the foregoing indebtedness was incurred, of over $500.

After plaintiff had proved his case, the defendant merely put in evidence two checks, aggregating $500, to the order of plaintiff’s assignors, and indorsed by them, but signed by defendant’s decedent as executor of a named estate. Whatever presumption of fact might have arisen from the giving of his individual checks by defendant’s decedent under the circumstances (see 30 Cyc. 1271-1273), it can hardly be claimed, I think, that any presumption of payment of his individual debt arises from the giving by defendant’s decedent of checks of an estate of which he was a trustee.

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

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Bluebook (online)

143 N.Y.S. 938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ball-v-elliott-nyappterm-1913.