Winder v. Pollack

151 N.Y.S. 870

Opinion

SHEARN, J.

The action was brought to recover $237.84, balance due for merchandise sold and delivered. One item was in dispute, that of October 10, 1914, consisting of 24 ladies’ coats, át $6 each. Defendant also claimed payment in full by a check for $106.

[1, 2] As to the defense of payment, it was uncontradicted that the check was deposited in regular course, but came back from the bank dishonored. To resist the claim of delivery of the 24 coats, the court permitted defendant to introduce in evidence his books of account, to show the negative fact that they contained no entry of the receipt of the coats, and his bookkeeper was permitted to testify that the books contained no such entry. Obviously this was error (Linden v. Thieriot, 96 App. Div. 256, 89 N. Y. Supp. 273), and seriously prejudicial in a case where the issue of delivery was sharply contested and was submitted to a jury.

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