Berman v. Kadin

140 Misc. 77

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 15, 1930
• Status: Published

Opinion

Per Curiam.

Judgment unanimously reversed upon the law, and new trial granted, with thirty dollars costs to appellant to abide the event. While the defendant did not plead lack of consideration, he denied the making and execution of the check sued upon. He was entitled, therefore, to show how the paper sued upon came into plaintiff’s possession. The plaintiff was defendant’s bookkeeper, and at the beginning of the trial defendant’s counsel stated defendant’s claim that the check was signed in blank to pay biffs of defendant. He should have been allowed to cross-examine the plaintiff and to testify himself as to the giving of blank checks. At the time the court below refused to let defendant testify as to the giving of blank checks, he had not, as the court assumed, been interrogated on that subject. If the plaintiff loaned money to his father and deposited the same in defendant’s account, because of a transaction between the father and defendant, that did not constitute a loanjto defendant by plaintiff, and the latter could not get back the money by the use of a blank check signed by defendant for other purposes. The questions of presentment and notice of dishonor were not urged below, and cannot now be considered.

All concur; present, Cropsey, MacCrate and Lewis, JJ.