Appellate Terms of the Supreme Court of New York, 1915

Lacey v. Steinhardt

Appellate Terms of the Supreme Court of New York · Decided December 28, 1915 · Finch

156 N.Y.S. 273 (New York Supplement)

Counsel

George C. Basch, of New York City (Arthur G. Basch and Saul Gordon, both of New York City, on the brief), for appellant., Loeb, Bernstein & Ash, of New York City (Mortimer B. Bernstein, of New York City, of counsel), for respondent.

Opinion of the Court

FINCH, J.

This action was brought to recover moneys loaned by the plaintiff to the defendant. The answer set up a defense of payment and a general release.

Plaintiff testified that he made various small loans to defendant during a period of about a year and a half, and such loans aggregated at least $1,579. Thereafter the plaintiff, the defendant, and the latter’s attorney had a conference, in which it was agreed that the plaintiff had advanced that amount, and that the defendant had already paid $540 on account. If these figures were correct, there remained due $1,039. The defendant at that conference paid $750 more, and received from the plaintiff a general release under seal. Plaintiff testified that the release was prepared by defendant’s attorney, who said it was a “receipt”; that he (the plaintiff) did not read it, but believed it to be merely a receipt «for the $750, though a copy of it was given to him at the time. He further testified that the defendant promised to pay the balance in a few days. If this testimony is true, plaintiff’s claim was not without evidence to support it.

The judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

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