Frankenstein v. Levini — 65 N.Y.S. 562

Majority

p. 562

FRANKENSTEIN v. LEVINI.

(Supreme Court, Appellate Term.

June 28, 1900.)

Headnote

1. Action on Note—Parties.

In an action on a note, the plaintiff cannot recover where the note Is not payable to him, has not been indorsed, and there is no evidence to show that he is the owner thereof.

2. Same—Condition oe Payment.

Where it appears in an action on a note that it was not to be paid till certain claims were paid,.and that they have not been paid, a recovery cannot be had thereon.

Appeal from municipal court of city of Hew York.

Action on a note by Jacob Frankenstein against David Levini. From a judgment in favor of defendant, plaintiff appeals.

Affirmed.

Argued before TRUAX, P. J., and SCOTT and'DUGRO, JJ.

Shafer & Levinine, for appellant.

B. H. Arnold, for respondent.

There is nothing in the. case to show that the note in suit is the property of the plaintiff.. The note is made payable to the order of one M. Simiansky, and has never been indorsed. Moreover, the case shows that the note was not to be paid until certain claims were paid, and that these claims have not been paid. Judgment affirmed," with costs.