Feigelman v. Lefrak & Albert, Inc.

Appellate Terms of the Supreme Court of New York

Feigelman v. Lefrak & Albert, Inc.

113 Misc. 342, 184 N.Y.S. 582

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 15, 1920

StatusPublished

This text of 113 Misc. 342 (Feigelman v. Lefrak & Albert, Inc.) 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

Feigelman v. Lefrak & Albert, Inc., 113 Misc. 342, 184 N.Y.S. 582 (N.Y. Ct. App. 1920).

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Opinion

Per Curiam.

The complaint sets forth a cause of action on a post dated check for $1,000, and the court below has dismissed the complaint on the ground that plaintiff failed to allege that he had duly complied with the federal statutes requiring the placing of a war stamp on the instrument. We feel that there is no valid ground for the decision that has been made. The statute requiring persons to affix stamps to negotiable instruments provides a penalty for failure to do so, but there is no established rule which requires plaintiff to allege in a complaint to recover upon a check that he has affixed and cancelled the required amount of revenue stamps. It is urged too that the complaint is defective in that it contains no allegation that the instrument was protested for nonpayment and notice of dishonor given. A complete answer to this is found in the “ fifth ” paragraph of the complaint which reads: “ That said check was thereafter duly presented for payment, but was not paid, of all which, notice was given to said defendant.”

Judgment reversed and new trial granted, with thirty dollars costs to appellant to abide the event.

Present: Bijur, Delehanty and Wagner, JJ.

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

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Per Curiam.

The complaint sets forth a cause of action on a post dated check for $1,000, and the court below has dismissed the complaint on the ground that plaintiff failed to allege that he had duly complied with the federal statutes requiring the placing of a war stamp on the instrument. We feel that there is no valid ground for the decision that has been made. The statute requiring persons to affix stamps to negotiable instruments provides a penalty for failure to do so, but there is no established rule which requires plaintiff to allege in a complaint to recover upon a check that he has affixed and cancelled the required amount of revenue stamps. It is urged too that the complaint is defective in that it contains no allegation that the instrument was protested for nonpayment and notice of dishonor given. A complete answer to this is found in the “ fifth ” paragraph of the complaint which reads: “ That said check was thereafter duly presented for payment, but was not paid, of all which, notice was given to said defendant.”

Judgment reversed and new trial granted, with thirty dollars costs to appellant to abide the event.

Present: Bijur, Delehanty and Wagner, JJ.

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

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Bluebook (online)

113 Misc. 342, 184 N.Y.S. 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feigelman-v-lefrak-albert-inc-nyappterm-1920.