Herrmann v. Koref

47 Misc. 94, 93 N.Y.S. 488

Opinion

Scott, J.

The defendant, sued for a balance of $100, pleaded payment. In order to prove his defense he sought to show that a sum originally paid hy him to Henry Herrmann personally on another transaction had hy agreement been applied to the payment of his indebtedness to the firm. Hpon this question the evidence, such as it was, was conflicting. At the close of the evidence both sides moved. for the • direction of a verdict. Defendant’s motion was denied. Before any verdict was directed or recorded, plaintiffs asked to go to the jury upon the question of the application.of the check for $100 given by defendant to plaintiffs, which was the only question in the case. This was denied and a verdict directed in favor of defendant. This was error. The request to go.to the jury was season ably made and should have been granted. Eldredge v. Matthews, 93 App. Div. 356; Cullinan v. Furthmann, 70 id. 110.

Leventbitt and Gbeenbaum, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.