Schuchman v. Hochstim

Appellate Terms of the Supreme Court of New York

Schuchman v. Hochstim

104 N.Y.S. 374

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 16, 1907

StatusPublished

This text of 104 N.Y.S. 374 (Schuchman v. Hochstim) 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

Schuchman v. Hochstim, 104 N.Y.S. 374 (N.Y. Ct. App. 1907).

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Opinion

BRADY, J.

Plaintiff sues as executor to recover $145 alleged to be due his testator, with interest from September 26, 1905. Defendant’s answer pleads payment of the claim to the extent of $130, and alleges that “there is only due the plaintiff the sum of $15, which the defendant is willing to tender into court.”

The only evidence of payment is given by a witness who testified that he was present at an interview when defendant and the testator talked about the bill, and witness saw defendant pay testator some money, and heard defendant say to testator, “I will pay you the bill, less $15 for the vest.” Witness said there was a $100 bill and some bills of smaller denomination. He could not specify the denomination or amount. The evidence is not sufficient to show payment of more than $100.

The record is indefinite upon the question of tender. No proof of tender before suit was offered, and it does not appear from the record whether the amount admitted by the answer to be due was paid into court.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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BRADY, J.

Plaintiff sues as executor to recover $145 alleged to be due his testator, with interest from September 26, 1905. Defendant’s answer pleads payment of the claim to the extent of $130, and alleges that “there is only due the plaintiff the sum of $15, which the defendant is willing to tender into court.”

The only evidence of payment is given by a witness who testified that he was present at an interview when defendant and the testator talked about the bill, and witness saw defendant pay testator some money, and heard defendant say to testator, “I will pay you the bill, less $15 for the vest.” Witness said there was a $100 bill and some bills of smaller denomination. He could not specify the denomination or amount. The evidence is not sufficient to show payment of more than $100.

The record is indefinite upon the question of tender. No proof of tender before suit was offered, and it does not appear from the record whether the amount admitted by the answer to be due was paid into court.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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Bluebook (online)

104 N.Y.S. 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schuchman-v-hochstim-nyappterm-1907.