Dewey v. Fountaine

127 Misc. 150, 215 N.Y.S. 321, 1926 N.Y. Misc. LEXIS 927

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 22, 1926
• Status: Published

Opinion

Per Curiam.

Plaintiff sued for the balance due on a note for $1,000. The defense was usury, defendant claiming that she had given the note for $1,000 in return for a loan of $800. The issue litigated was the amount advanced.

Plaintiff gave at least two variant accounts of the manner in which the loan was made, one to the effect that she gave defendant a check for $1,000, and the other that she gave a check for $990 and $10 in cash.

Since the trial the defendant has, upon inquiry at plaintiff’s bank, discovered that on the date in question plaintiff gave her a certified check for $800. Plaintiff’s explanation of this discrepancy is that she gave this check and the balance of $200 in cash to enable defendant to pay certain obligations.

We think that the testimony is newly discovered in the sense that the defendant could not reasonably have been expected to make inquiries of this sort under the circumstances, and that it was material.

Order reversed, judgment vacated, and new trial granted, with thirty dollars costs to abide the event. Appeal from judgment dismissed.

Bijtjr and Levy, JJ., concur; Lydon, J., dissents.