Johnson County Savings Bank v. Sherow

Headnote

Johnson County Sav. Bank v. Sherow, 164 App. Div. 898 , affirmed.

Appeal from a judgment of the Appellate Division of the. Supreme Court in the second judicial department, entered August 18, 1914, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The complaint sets forth a cause of action upon a draft drawn by the Lyon-Taylor Company, a partnership, upon defendant post dated September 15, 1906, and accepted by him in payment of jewelry sold defendant by the Lyon-Taylor Company and indorsed to the plaintiff before maturity. The answer admitted the due execution, acceptance and delivery-of the draft, denied the indorsement, pleaded an agreement between the Lyon-Taylor Company and defendant by which the Lyon-Taylor Company agreed to take back the goods, which agreement was alleged to have been known by the plaintiff, and further alleged an actual return of the goods to the Lyon-Taylor Company. Defendant also attempted to set up a defense of fraud consisting of alleged misrepresentations that the jewelry sold was “ of the best quality and a good and marketable quality and that the same was of a cer- • tain definite standard of quality.” There was no allegation, however, of an intent to deceive on the part of the

Lyon-Taylor Company. The defendant also pleaded that the plaintiff was not the real party in interest.