Van Norden Trust Co. v. Spar

Appellate Terms of the Supreme Court of New York

Van Norden Trust Co. v. Spar

111 N.Y.S. 674

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 30, 1908

StatusPublished

This text of 111 N.Y.S. 674 (Van Norden Trust Co. v. Spar) 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

Van Norden Trust Co. v. Spar, 111 N.Y.S. 674 (N.Y. Ct. App. 1908).

Pincite

Opinion

PER CURIAM.

The complaint alleges that the defendant made and delivered his promissory note to one Strawgate for $150; that before maturity Strawgate indorsed and delivered said note to the plaintiff, and upon delivery the plaintiff paid Strawgate $100, and agreed that upon the note being paid it would pay Strawgate $50; that subsequently, when the note became due, the defendant paid the plaintiff $100, which through an error of the plaintiff’s receiving teller was accepted and the note delivered to the defendant; that the plaintiff was compelled to and did pay Strawgate the balance of $50. The plaintiff brings this action to recover the sum of $50 from the defendant.

The receiving teller testified to his error in delivering the note upon the receipt of $100 from the defendant. The records of the plaintiff, made at the time of the receipt of the money, also corroborate the teller as to the amount received from the defendant. Strawgate testified to the fact that he collected $50 from the plaintiff after he had commenced suit for its recovery. The defendant on the trial claimed that he had paid the plaintiff $150; but his testimony was very indefinite, and certainly did not prove the payment of this amount. In response to his counsel’s question as to how much the note in question was for, he answered: “I don’t remember at all.” Several times he testified that he knew he paid more than $100, but that he did not know how much he paid. In response to leading questions he after-wards said that he paid the full amount of the note.' This testimony is not convincing, however, as he asserted that he did not know the amount of the note, although he subsequently changed his testimony upon this subject also, and swore that he knew the note was for $150. The defendant’s testimony does not establish that he paid $150, but [675]*675merely that he paid more than $100; and, in view of the positive testimony that he paid only $100, the judgment rendered in his favor should be reversed.

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

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PER CURIAM.

The complaint alleges that the defendant made and delivered his promissory note to one Strawgate for $150; that before maturity Strawgate indorsed and delivered said note to the plaintiff, and upon delivery the plaintiff paid Strawgate $100, and agreed that upon the note being paid it would pay Strawgate $50; that subsequently, when the note became due, the defendant paid the plaintiff $100, which through an error of the plaintiff’s receiving teller was accepted and the note delivered to the defendant; that the plaintiff was compelled to and did pay Strawgate the balance of $50. The plaintiff brings this action to recover the sum of $50 from the defendant.

The receiving teller testified to his error in delivering the note upon the receipt of $100 from the defendant. The records of the plaintiff, made at the time of the receipt of the money, also corroborate the teller as to the amount received from the defendant. Strawgate testified to the fact that he collected $50 from the plaintiff after he had commenced suit for its recovery. The defendant on the trial claimed that he had paid the plaintiff $150; but his testimony was very indefinite, and certainly did not prove the payment of this amount. In response to his counsel’s question as to how much the note in question was for, he answered: “I don’t remember at all.” Several times he testified that he knew he paid more than $100, but that he did not know how much he paid. In response to leading questions he after-wards said that he paid the full amount of the note.' This testimony is not convincing, however, as he asserted that he did not know the amount of the note, although he subsequently changed his testimony upon this subject also, and swore that he knew the note was for $150. The defendant’s testimony does not establish that he paid $150, but [675]*675merely that he paid more than $100; and, in view of the positive testimony that he paid only $100, the judgment rendered in his favor should be reversed.

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

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Bluebook (online)

111 N.Y.S. 674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-norden-trust-co-v-spar-nyappterm-1908.