Skolsky v. Harvitt

121 N.Y.S. 592

Opinion

GUY, J.

This is an appeal by defendant from "judgment in favor of plaintiff. The action is for goods sold and delivered; the only defense being payment. The evidence shows that defendant gave to plaintiff a postdated check in payment of the amount due, which check was never paid, but that plaintiff had parted with possession of the check "by indorsing and delivering it to a third party, who still retains possession thereof. Under the authority of Fitch v. McDowell, 145 N. Y. 498, 40 N. E. 205, this constitutes payment, and is a complete defense to this action.

The judgment should therefore be reversed,, and a new trial ordered, with costs to appellant to abide the event. A1Í concur.