Morris Plan Co. v. Clough

Appellate Terms of the Supreme Court of New York

Morris Plan Co. v. Clough

157 Misc. 659, 284 N.Y.S. 714, 1935 N.Y. Misc. LEXIS 1671

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 29, 1935

StatusPublished

Cited by1 cases

This text of 157 Misc. 659 (Morris Plan Co. v. Clough) 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

Morris Plan Co. v. Clough, 157 Misc. 659, 284 N.Y.S. 714, 1935 N.Y. Misc. LEXIS 1671 (N.Y. Ct. App. 1935).

Pincite

Opinion

Per Curiam.

While it might be inferred from plaintiff’s complaint and some of the testimony given by plaintiff’s witness below, that plaintiff proceeded here on the theory that the present note had been altered to one for $540, the instrument itself fails to establish that fact. The only change made was in the figures denoting the sum payable, a pencil notation “ $560 ” being placed over' the original figure of “ $1,020.” The words expressing the sum payable were not changed. It is our view that such a change does not constitute a material alteration so as to avoid the instrument. The note still remains one for the sum expressed in words. (Neg. Inst. Law, §§ 36, 206.)

We so held in the case of Morris Plan Co. of N. Y. v. Fitzgibbon (April, 1934, term appeal No. 210 M. C. N. Y. L. J. May 17, 1934, p. 2400), an action arising on the same note, though there it was clear that plaintiff took the position that the note had not been altered, being one for the larger amount but taken as security for the advance of the smaller sum.

The judgment should be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur. Present — Lydon, Callahan and Shientag, JJ.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

While it might be inferred from plaintiff’s complaint and some of the testimony given by plaintiff’s witness below, that plaintiff proceeded here on the theory that the present note had been altered to one for $540, the instrument itself fails to establish that fact. The only change made was in the figures denoting the sum payable, a pencil notation “ $560 ” being placed over' the original figure of “ $1,020.” The words expressing the sum payable were not changed. It is our view that such a change does not constitute a material alteration so as to avoid the instrument. The note still remains one for the sum expressed in words. (Neg. Inst. Law, §§ 36, 206.)

We so held in the case of Morris Plan Co. of N. Y. v. Fitzgibbon (April, 1934, term appeal No. 210 M. C. N. Y. L. J. May 17, 1934, p. 2400), an action arising on the same note, though there it was clear that plaintiff took the position that the note had not been altered, being one for the larger amount but taken as security for the advance of the smaller sum.

The judgment should be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur. Present — Lydon, Callahan and Shientag, JJ.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

Cite This Page — Counsel Stack

Bluebook (online)

157 Misc. 659, 284 N.Y.S. 714, 1935 N.Y. Misc. LEXIS 1671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-plan-co-v-clough-nyappterm-1935.

Opinion

Related

Cite This Page — Counsel Stack