Stadtmauer v. Lukin

Appellate Terms of the Supreme Court of New York

Stadtmauer v. Lukin

126 Misc. 318, 213 N.Y.S. 33, 1925 N.Y. Misc. LEXIS 1167

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 30, 1925

StatusPublished

This text of 126 Misc. 318 (Stadtmauer v. Lukin) 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

Stadtmauer v. Lukin, 126 Misc. 318, 213 N.Y.S. 33, 1925 N.Y. Misc. LEXIS 1167 (N.Y. Ct. App. 1925).

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Opinions

Bijur, J.

This action was brought upon a check. Defendant, whose testimony was evidently believed, testified that he gave the check in suit on a Sunday upon the express condition that it should not be used until the following Saturday. Nevertheless on the Monday succeeding the day of the making and delivery of the check defendant met the payee at defendant’s bank and the payee said that he had come to have the check certified, whereupon the defendant stopped payment.

The check having been made and delivered upon a condition, whether it be called a condition precedent or a condition subsequent, and the condition violated by the payee, it seems to me to be clear that defendant had a right to rescind the transaction to that extent at least and to stop payment of the check.

The judgment, therefore, should be affirmed, with twenty-five dollars costs.

Levy, J., concurs; Churchill, J., dissents in opinion.

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Bijur, J.

This action was brought upon a check. Defendant, whose testimony was evidently believed, testified that he gave the check in suit on a Sunday upon the express condition that it should not be used until the following Saturday. Nevertheless on the Monday succeeding the day of the making and delivery of the check defendant met the payee at defendant’s bank and the payee said that he had come to have the check certified, whereupon the defendant stopped payment.

The check having been made and delivered upon a condition, whether it be called a condition precedent or a condition subsequent, and the condition violated by the payee, it seems to me to be clear that defendant had a right to rescind the transaction to that extent at least and to stop payment of the check.

The judgment, therefore, should be affirmed, with twenty-five dollars costs.

Levy, J., concurs; Churchill, J., dissents in opinion.

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Bluebook (online)

126 Misc. 318, 213 N.Y.S. 33, 1925 N.Y. Misc. LEXIS 1167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stadtmauer-v-lukin-nyappterm-1925.