Feldman-Swarris Co. v. Orefice

Appellate Terms of the Supreme Court of New York

Feldman-Swarris Co. v. Orefice

157 N.Y.S. 371

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 10, 1916

StatusPublished

This text of 157 N.Y.S. 371 (Feldman-Swarris Co. v. Orefice) 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

Feldman-Swarris Co. v. Orefice, 157 N.Y.S. 371 (N.Y. Ct. App. 1916).

Pincite

Opinion

PER CURIAM.

[1] The plaintiff is a corporation engaged in the business of merchant tailoring. Its treasurer, Feldman, testified that it made and delivered two suits of clothes to defendant at" the agreed price of $25 for each suit. He admitted that $20 had been paid on account. The defense was payment. The defendant testified that he was introduced to Feldman by one Swarris, a personal friend and brother lodge member; that he knew that Feldman and Swarris were partners in the tailoring business, but that he did not know that plaintiff was a corporation; that he paid Swarris $25 on one occasion, $20 on another, and at Swarris’ request paid the latter’s lodge dues of $6.25. In the absence of notice to defendant, or knowledge on his part that plaintiff was a corporation, payment to Swarris was sufficient.

[2] The judgment, however, involves a finding of payment in full; but, at best, the testimony only malees out a payment of $45, since the lodge dues were manifestly a personal debt of one partner, payment of which cannot be set off against a debt due the partnership. 30 Cyc. 502.

The judgment must therefore be reversed, and a new trial ordered, with $30 costs to the appellant to abide the event, unless the defendant will stipulate that judgment may be entered in plaintiff’s favor for the sum of $5 and appropriate costs in the court below, in which event the judgment, so modified, will be affirmed, without costs of this appeal.

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PER CURIAM.

[1] The plaintiff is a corporation engaged in the business of merchant tailoring. Its treasurer, Feldman, testified that it made and delivered two suits of clothes to defendant at" the agreed price of $25 for each suit. He admitted that $20 had been paid on account. The defense was payment. The defendant testified that he was introduced to Feldman by one Swarris, a personal friend and brother lodge member; that he knew that Feldman and Swarris were partners in the tailoring business, but that he did not know that plaintiff was a corporation; that he paid Swarris $25 on one occasion, $20 on another, and at Swarris’ request paid the latter’s lodge dues of $6.25. In the absence of notice to defendant, or knowledge on his part that plaintiff was a corporation, payment to Swarris was sufficient.

[2] The judgment, however, involves a finding of payment in full; but, at best, the testimony only malees out a payment of $45, since the lodge dues were manifestly a personal debt of one partner, payment of which cannot be set off against a debt due the partnership. 30 Cyc. 502.

The judgment must therefore be reversed, and a new trial ordered, with $30 costs to the appellant to abide the event, unless the defendant will stipulate that judgment may be entered in plaintiff’s favor for the sum of $5 and appropriate costs in the court below, in which event the judgment, so modified, will be affirmed, without costs of this appeal.

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Bluebook (online)

157 N.Y.S. 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feldman-swarris-co-v-orefice-nyappterm-1916.