Hengen v. Lewis

Appellate Terms of the Supreme Court of New York

Hengen v. Lewis

91 N.Y.S. 77

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 7, 1904

StatusPublished

This text of 91 N.Y.S. 77 (Hengen v. Lewis) 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

Hengen v. Lewis, 91 N.Y.S. 77 (N.Y. Ct. App. 1904).

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Opinion

BISCHOFF, J.

In an action for fraud, based upon the defendant’s misrepresentation that he had funds on deposit with E. T. Oppenheim & Co., thereby inducing the plaintiff to pay him $50 upon a check drawn upon that firm, the justice dismissed the complaint on the ground that the instrument was not a check, but a draft. In form the paper was a “check,” as the word is customarily employed, and, until the distinction was suggested by the justice, it was considered a check by all the persons concerned. Moreover, as far as this action was to be affected, in substance it was a check, as defined by statute, being drawn upon an association of individuals engaged in thé business of banking. Neg. Inst. Law, §§ 2, 321; Laws 1897, pp. 720, 756, c. 612. To require the plaintiff to sustain the affirmative upon a wholly collateral matter, and to show that this firm made reports to the banking department, where the exact legal definition of the character of this pacer as a "check” or “draft” was entirely immaterial to the only issues the parties had come to try, would not seem to be a commendable method of procedure to the end that justice might be readily administered. .

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

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BISCHOFF, J.

In an action for fraud, based upon the defendant’s misrepresentation that he had funds on deposit with E. T. Oppenheim & Co., thereby inducing the plaintiff to pay him $50 upon a check drawn upon that firm, the justice dismissed the complaint on the ground that the instrument was not a check, but a draft. In form the paper was a “check,” as the word is customarily employed, and, until the distinction was suggested by the justice, it was considered a check by all the persons concerned. Moreover, as far as this action was to be affected, in substance it was a check, as defined by statute, being drawn upon an association of individuals engaged in thé business of banking. Neg. Inst. Law, §§ 2, 321; Laws 1897, pp. 720, 756, c. 612. To require the plaintiff to sustain the affirmative upon a wholly collateral matter, and to show that this firm made reports to the banking department, where the exact legal definition of the character of this pacer as a "check” or “draft” was entirely immaterial to the only issues the parties had come to try, would not seem to be a commendable method of procedure to the end that justice might be readily administered. .

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

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Bluebook (online)

91 N.Y.S. 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hengen-v-lewis-nyappterm-1904.