Levine v. Fishman

134 Misc. 350, 235 N.Y.S. 549, 1929 N.Y. Misc. LEXIS 884

Opinions

Pee Cueiam.

By plaintiff’s own story the indorsed notes were accepted by him conditionally. On demand he refused to give them up. He had no power to hold them for any other purpose than to consult his lawyer as to whether he would retain them. The retention as matter of law constitutes an acceptance of them as payment.

Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.

Bijue and Petebs, JJ., concur; Callahan, J., dissents.