Opinion
November, 1930.
Judgment reversed upon the law and the facts and a new trial granted, costs to abide the event. While this record does not disclose evidence binding on plaintiff of any infirmity in the note based on any condition precedent, nevertheless a question of fact existed for submission to the jury as to the credibility attaching to the plaintiff's testimony that he paid value for the note before its maturity, in view of the circumstances attending upon the payments which he claims to have made and the relation of the bank account out of which payment was made to moneys belonging to the defendant Goldberg, who negotiated the note in question to the plaintiff. ( Hoberg v. Sofranscy, 217 App. Div. 546.) Lazansky, P.J., Kapper, Hagarty, Carswell and Scudder, JJ., concur.