Koehler v. Adler — 47 N.Y. Super. Ct. 518

Majority

p. 518

JOSEPH M. KOEHLER, Appellant, v. SOLOMON ADLER, as Administrator, &c., Respondent.

Before Speir and Freedman, JJ.

Decided February 7, 1881.

Headnote

Ghech—giving of, raises presumption of payment, not of loan.

Appeal from judgment in favor of defendant, and from order denying plaintiff’s motion for a new trial upon the minutes.

The action was brought to recover a sum of money alleged to have been loaned by the plaintiff to defendant’s intestate.

p. 519

The action has been twice tried. Upon the first trial, a verdict was directed by the court in favor of the plaintiff. The court of appeals ( 78 N. Y. 287 ), reversed the judgment entered on the verdict, and ordered a new trial, upon which the jury found a verdict for the defendant.

On this trial, as on the other, the plaintiff produced a check dated January 30, 1871, on the Bull’s Head Bank for $2,500, drawn by him to the order of the defendant’s intestate, and by him indorsed, and also indorsed by Farmer & Baum. On the back of this check the plaintiff had written the following indorsement: “ Received, New York, September 23, 1874, from Mr. Jacob Adler, two hundred and fifty dollars on account of the amount of this check. $250. J. M. Koehler.”

The court at General Term, said : “It is not claimed that this check is evidence of money loaned, but, on the contrary, the presumption is that it was paid upon some debt or obligation owing by the plaintiff.” And, after consideration of the evidence, the court held that the verdict was neither against the evidence or the weight of evidence, and that none of plaintiff’s exceptions were well taken.

Arnoux, Ritch & Woodford, attorneys, and William Henry Arnoux, of counsel, for appellant-

Boardman & Boardman, attorneys, and Samuel Boardman, of counsel, for respondent.

Opinion by Speir, J.; Freedman, J., concurred.

Judgment and order appealed from affirmed, with costs.

Cases cited

Koehler v. Adler 78 N. Y. 287 N.Y. 1879-09-30 p. 519