Opinion
December 15, 1926.
Appeal from the City Court of the City of New York.
Hyman A. Bettigole [ Leonard Probst of counsel], for the appellant.
Kramer Kleinfeld [ Barnet Kaprow of counsel], for the respondents.
The motion relates to a defense of payment interposed at the trial based upon evidence by the defendant that the note sued upon had been paid by his transfer to one Mandel of rents accruing to defendant from certain premises. Among other "new evidence" presented by plaintiff is the testimony of one Gluckman to the effect that he had lived with Mandel and that on various occasions he had seen the defendant come to Mandel and receive from the latter all the rents of the property owned by the defendant, thus indicating that Mandel was merely the collecting agent of defendant and not assignee of these rents. We think that this testimony is material and very persuasive. There is no sound suggestion that plaintiff was aware of or could reasonably have suspected that such evidence existed or to affect his statement that he learned of it merely through a chance meeting with Gluckman.
Order reversed, motion granted, judgment vacated and a new trial ordered, with costs to appellant to abide the event.
All concur; present, BIJUR, O'MALLEY and LEVY, JJ.