Guarino v. Illinois Surety Co.

Appellate Terms of the Supreme Court of New York

Guarino v. Illinois Surety Co.

125 N.Y.S. 413

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 11, 1910

StatusPublished

This text of 125 N.Y.S. 413 (Guarino v. Illinois Surety Co.) 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

Guarino v. Illinois Surety Co., 125 N.Y.S. 413 (N.Y. Ct. App. 1910).

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Opinion

BIJUR, J.

This action was brought to recover upon a bond given by defendant under Laws 1907, c. 185, in connection with a certain private banker, and conditioned on his transmitting faithfully all moneys received by him, etc., following the language of the statute. While the record in regard to the way in which this case was taken from the jury is rather unintelligible, that point need not be considered, because defendant’s motion to dismiss should have been granted.

There is complete absence of proof on two essential points, namely, the delivery of the money by plaintiff to the banker, and failure of the latter to transmit the same. Plaintiff’s counsel seeks to help out his failure to prove delivery of the money by referring to questions which he asked the plaintiff, in which such delivery was presupposed. But, on the one hand, that is not evidence, and, on the other, these questions were properly objected to by defendant’s counsel. It is alleged that the money was to have been delivered at some place in Sicily through the post office in that place," and the only proof offered to show the failure of transmission is that plaintiff inquired at the post office for letters. The entire record is too barren of serious evidence to have warranted other than a dismissal of the complaint thereon.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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BIJUR, J.

This action was brought to recover upon a bond given by defendant under Laws 1907, c. 185, in connection with a certain private banker, and conditioned on his transmitting faithfully all moneys received by him, etc., following the language of the statute. While the record in regard to the way in which this case was taken from the jury is rather unintelligible, that point need not be considered, because defendant’s motion to dismiss should have been granted.

There is complete absence of proof on two essential points, namely, the delivery of the money by plaintiff to the banker, and failure of the latter to transmit the same. Plaintiff’s counsel seeks to help out his failure to prove delivery of the money by referring to questions which he asked the plaintiff, in which such delivery was presupposed. But, on the one hand, that is not evidence, and, on the other, these questions were properly objected to by defendant’s counsel. It is alleged that the money was to have been delivered at some place in Sicily through the post office in that place," and the only proof offered to show the failure of transmission is that plaintiff inquired at the post office for letters. The entire record is too barren of serious evidence to have warranted other than a dismissal of the complaint thereon.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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Bluebook (online)

125 N.Y.S. 413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guarino-v-illinois-surety-co-nyappterm-1910.