Silvestri v. Saveriano

95 N.Y.S. 580

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 27, 1905
• Status: Published

Opinion

SCOTT, P. J.

This is an action upon a promissory note for 600 lire, made by defendant in Italy to the order of Antonio Pagano and indorsed to plaintiff. The note is dated April 10, 1899, and is payable August 10, 1899. The defense is payment. To sustain his defense the defendant alleges thathe signed the note in blank in September, 1897, not in 1899, and the date was afterwards filled in by Pagano. Defendant further testifies that in January, 1898, he sent Pagano 500 lire through the Italian post office, and he produces a receipt from the post office showing that he deposited a sum of money (apparently 801.60 lire) in favor of Antonio Pagano. This receipt is apparently the counterfoil of a post office money order. Defendant also produces a receipt, said to be signed by Pagano and dated November 16, 1899, acknowledging payment of 100 lire through one Olivieri (defendant’s brother-in-law). In this paper Pagano acknowledges the receipt of the sum “on account of what is due me by Antonio Savariano di Francesco” (the defendant).

This last document does not show payment of the note. At most, it purports to show only a payment on account. The plea of payment, therefore, must be sustained, if at all, by the post office receipt. That receipt only proves that in January, 1898, the defendant purchased a money order in favor of Pagano for 800 (or 500) lire. Whether the monéy was ever sent to Pagano, or whether, if sent, it was in payment of this note, is not made to appear. On the whole, we do not think that the defense of payment was satisfactorily sustained. Upon a new trial it should be possible to obtain more reliable evidence upon that subject. In our opinion justice requires that there should be a new trial.

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