Majority
p. 691TORREGIANI et al. v. RUSSO BARBA REALTY CO. et al. (Supreme Court, Appellate Term, First Department. December 14, 1914.) Argued December term, 1914, before GUY, BIJUR, and PAGE, JJ.
Headnote
Payment (§ 70[1] )—Evidence—Admissibility.Where, in an action on a promissory note, defendants produced receipts for the face value of the note, and plaintiffs testified that a large part of the amount represented by the receipts was paid on a prior indebtedness, it was error to exclude defendants’ evidence in rebuttal that the prior indebtedness had been entirely liquidated.
[Ed. Note.—For other cases, see Payment, Cent. Dig. §§ 203, 204, 206-218; Dec. Dig. § 70.*]
Appeal from Municipal Court, Borough of the Bronx, Second District.
Action by Luigi Torregiani and another, copartners doing business as Torregiani & Severino, against the Russo Barba Realty Company and others. From a judgment for plaintiffs, after a trial by a judge without a jury, defendants appeal. Reversed, and new trial granted.
Anthony J. Romagna, of New York City, for appellants.
Domenick A. Montani, of New York City, for respondents.
Plaintiffs sue upon a promissory note for $250; the defense being payment. Defendants exhibited receipts for the face value of the note; but, as to $200 of the money represented by the receipts, plaintiffs testify that it was paid on a prior indebtedness of defendants to plaintiffs. When defendants sought in rebuttal to show that the prior indebtedness had been entirely liquidated, all their proofs were rejected. The evidence was competent and material, and should have been admitted.
Judgment reversed, and new trial granted, with costs to appellants to abide the event. All concur.