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Skolsky v. Harvitt

121 N.Y.S. 592 Court N.Y. App. Term Decision date 1910-03-10 English

Delivered by GUY, J.

Contents

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p. 592
SKOLSKY v. HARVITT.
(Supreme Court, Appellate Term.
March 10, 1910.)

Headnote

Payment (§ 22[1] )—Checks.
Where defendant gave plaintiff a postdated check In payment for goods purchased, and plaintiff Indorsed it to a third party, who still holds it, this constituted payment, although the check has not been paid, and was a complete defense to an action for the price of the goods.
[Ed. Note.—For other cases, see Payment, Cent. Dig. §§ 87, 88; Dec. Dig. § 22.*]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Jacob Skolsky against Louis Harvitt. From a judgment for plaintiff, defendant appeals.
Reversed, and new trial ordered.
Argued before SEABURY, GUY, and WHITNEY, JJ.
Kahn & Hegt, for appellant.
Elias E. ICohner, for respondent.

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.

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