Capone v. Princess Holding Corp.

231 A.D. 829

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1930
• Status: Published

Opinion

Judgment reversed upon the law and the facts, and new trial granted, costs to abide the event. We are of opinion that the plaintiff made out a prima fade case upon the cause of action stated in his complaint. While there is a discrepancy between the testimony given by the plaintiff and his witness Keller as to the time $10,000 in cash was to be paid by Keller, this was not sufficient to justify a dismissal of the complaint. It was still for the jury to say whether the agreement between the parties was not as testified to by the plaintiff. The jury might say that Keller was mistaken and find that Capone’s testimony was true, particularly as the giving of the cheek to Mr. Weber is strong evidence that an agreement had been arrived at between Keller and Weber; and the testimony of plaintiff’s witness Kurte, to the effect that he had agreed to loan Keller $10,000 for thirty days upon Capone’s guaranty, indicates that this money was required by Keller at the time the contract was to be drawn up, and so tends to corroborate Capone’s version of the transaction. Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.