Majority
p. 553ROSS v. SARON. (Supreme Court, Appellate Term. May 2, 1905.) Argued before SCOTT, P, J., and LEVENTRITT and GREEN-BAUM, JJ.
Headnote
1. Bills and Notes—Checks—Nonpayment—Action against Dbaweb.A judgment against the drawer of a check, payment of which was alleged to have been refused on its presentation to the bank, cannot be sustained where there is no proof that the check was presented to the bank and payment refused, nor that notice of nonpayment was given to defendant, nor that' payment was stopped by defendant.
2. Same—Defense—Want of Considebation.
In an action against the drawer of a check, payment of which was alleged to have been refused by the bank, it was error to refuse to permit defendant to prove lack of consideration.
[Ed. Note.—For cases in point, see vol. 7, Cent. Dig. Bills and Notes, §§ 1367, 1368.]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by William H. Ross against Jacob Saron. From a judgment for plaintiff, defendant appeals. Reversed.
Leo Lerner, for appellant.
Maurice M. Greenstein, for respondent.
It is neither alleged nor proven that notice of the nonpayment of the check was given to defendant. It is alleged and denied, but not proven, that the check was presented to the bank, and payment refused. There is no proof that payment of the
p. 554
check was stopped, -or, if it was, that it was stopped by defendant. And, finally, the justice refused to permit defendant to prove lack of consideration. The case was not sharply tried on behalf of defendant, and full advantage by way of exception was not taken of the errors. But, notwithstanding this, we consider that justice will be best served if the judgment be reversed, and a new trial granted, with costs to abide the event; and it is so ordered.