Opinion
November 29, 1935.
Appeal from the Municipal Court of New York, Borough of Manhattan, Ninth District.
Harold H. Kissam, for the appellant.
Marvin Bergh, for the respondent Mathews.
While it might be inferred from plaintiff's complaint and some of the testimony given by plaintiff's witness below, that plaintiff proceeded here on the theory that the present note had been altered to one for $540, the instrument itself fails to establish that fact. The only change made was in the figures denoting the sum payable, a pencil notation "$560" being placed over the original figure of "$1,020." The words expressing the sum payable were not changed. It is our view that such a change does not constitute a material alteration so as to avoid the instrument. The note still remains one for the sum expressed in words. (Neg. Inst. Law, §§ 36, 206.)
We so held in the case of Morris Plan Co. of N.Y. v. Fitzgibbon (April, 1934, term appeal No. 210 M.C.N.Y.L.J. May 17, 1934, p. 2400), an action arising on the same note, though there it was clear that plaintiff took the position that the note had not been altered, being one for the larger amount but taken as security for the advance of the smaller sum.
The judgment should be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur. Present — LYDON, CALLAHAN and SHIENTAG, JJ.
Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.