Norton & Siegel, Inc. v. Nolan

253 A.D. 906, 2 N.Y.S.2d 56, 1938 N.Y. App. Div. LEXIS 9202

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 1938
• Status: Published

Opinion

Upon remission of this appeal by the Court of Appeals [276 N. Y. 392, 395, revg. 251 App. Div. 894] to this court for determination upon the merits, in an action for the sum of $4,672.04, alleged to have been the amount of loans made to defendant’s testator, and not repaid by him, judgment for plaintiff in the sum of $1,574.25 modified by substituting in lieu thereof judgment in the amounts totaling $4,672.04, with interest, as prayed ■ for in the complaint, and as so modified unanimously affirmed, in so far as an appeal is taken therefrom, with costs to the appellant. Findings of fact numbered 8, 11, 14 and 17 and the conclusion of law contained in the decision are reversed, and plaintiff’s proposed findings numbered 4, 5, 6, 7, 8 and 9 and proposed conclusion of law are found. We are of opinion that the proof clearly overcomes the presumption of payment, in the light of the circumstances, and particularly in view of the fact that defendant’s testator had not directed that the cheeks offered by him be credited to him on account of his indebtedness to the corporation, and that they had not been entered in the “ Contra ” account. Furthermore, the checks do not tally with the amounts of the indebtedness for the respective years, and we regard plaintiff’s showing whereby the checks were traced to their source as conclusive that no part of the proceeds could properly have been credited to defendant’s testator on account of the indebtedness for which recovery is sought here. Present — Lazansky, P. J., Hagarty, Carswell, Davis and Close, JJ.