Sellitto v. Lamberti Construction Co. — 146 N.Y.S. 178

Majority

p. 178

SELLITTO v. LAMBERTI CONST. CO.

(Supreme Court, Appellate Term, First Department.

March 5, 1914.)

Headnote

Bills and Notes (§ 335^[1] )—Actions—Defenses.

A note was executed by defendant, payable to the order of plaintiff’s partner upon the latter’s representation that there was a certain amount of masonwork to be done in a wall which he was to erect. The note was indorsed to plaintiff, who knew that it was given on the understanding that if defendant was found to be indebted to plaintiff’s partner in a smaller amount than that named in the note, defendant should be liable only for the reduced amount. Held, that it appearing that the wall contained less masonry than was claimed, plaintiff could not recover the full amount of the note, but must consent to a reduction.

[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 817; Dec. Dig. § 335.^[1] ]

Appeal from Municipal Court, Borough of The Bronx, First District.

Action by John Sellitto against the Lamberti Construction Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered, unless plaintiff consents to a remittitur.

Argued February term, 1914, before SEABURY, GUY, and DE-LANY, JJ.

Otto H. Droege, of New York City, for appellant.

Albert H. Vitale, of New York City, for respondent.

This is an action upon a promissory note for $517, made by the defendant and payable to the order of one Scognamiglio.

p. 179

The evidence shows that the note was given to Scognamiglio upon the representation that 25,501 cubic feet of masonwork in a certain wall was to be done, and that the note was indorsed and delivered to the plaintiff, who is shown by the evidence to have been a partner of Scognamiglio, and had knowledge of all the circumstances under which the note was made. It was clearly shown upon the trial that there were only 20,446 cubic feet of masonwork to be performed, and that the defendant had paid certain sums on account. The evidence shows that the note was given upon the understanding, of which the plaintiff was fully aware, that if the defendant was found to be indebted to Scognamiglio in a smaller sum than that named in the note, the defendant should only be liable for the reduced amount. We have examined the evidence carefully, and it shows that the defendant is indebted for the work done in the sum of $92.68.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event, unless the plaintiff consents within 10 days to reduce the judgment to $92.68, in which event the judgment is affirmed, without costs to either party.