Holzman, Cohen & Co. v. Motion Picture Apparatus Co.

156 N.Y.S. 604

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 7, 1916
• Status: Published

Opinion

PER CURIAM.

[ 1 ] This is an action for goods sold and delivered by plaintiff’s assignor. The answer sets up the defense of payment, which the court upheld after a trial. The court found that the goods were sold on 30 days’ credit. According to the testimony of an officer of the defendant, the credit expired on the 5th day of June. It is conceded on the record that check in payment of the bill was not received until the morning of the 7th of June, so that payment was concededly not made within the due date. The burden was on the defendant to show that payment was made before the commencement of the action. The plaintiff is therefore technically entitled to $2 costs.

[2] The failure to- serve a copy of the proposed answer upon the application to open the default, when a full statement of the defendant’s defense was contained in the moving papers, accompanied by an affidavit of merits, is a mere irregularity, and is not a jurisdictional defect (section 253 of the old Municipal Court Act), and under section 1317 of the Code of Civil Procedure may be disregarded by this court.

Judgment appealed from is therefore reversed, and judgment directed for the plaintiff in the sum of $2, without costs of this appeal or in the -court below.