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Norton Siegel, Inc. v. Nolan

Appellate Division of the Supreme Court of New York, Second Department
Feb 11, 1938
253 App. Div. 906 (N.Y. App. Div. 1938)

Opinion

February 11, 1938.

Present — Lazansky, P.J., Hagarty, Carswell, Davis and Close, JJ.


Upon remission of this appeal by the Court of Appeals [ 276 N.Y. 392, 395, revg. 251 App. Div. 894] to this court for determination upon the merits, in an action for the sum of $4,672.04, alleged to have been the amount of loans made to defendant's testator, and not repaid by him, judgment for plaintiff in the sum of $1,574.25 modified by substituting in lieu thereof judgment in the amounts totaling $4,672.04, with interest, as prayed for in the complaint, and as so modified unanimously affirmed, in so far as an appeal is taken therefrom, with costs to the appellant. Findings of fact numbered 8, 11, 14 and 17 and the conclusion of law contained in the decision are reversed, and plaintiff's proposed findings numbered 4, 5, 6, 7, 8 and 9 and proposed conclusion of law are found. We are of opinion that the proof clearly overcomes the presumption of payment, in the light of the circumstances, and particularly in view of the fact that defendant's testator had not directed that the checks offered by him be credited to him on account of his indebtedness to the corporation, and that they had not been entered in the "Contra" account. Furthermore, the checks do not tally with the amounts of the indebtedness for the respective years, and we regard plaintiff's showing whereby the checks were traced to their source as conclusive that no part of the proceeds could properly have been credited to defendant's testator on account of the indebtedness for which recovery is sought here.


Summaries of

Norton Siegel, Inc. v. Nolan

Appellate Division of the Supreme Court of New York, Second Department
Feb 11, 1938
253 App. Div. 906 (N.Y. App. Div. 1938)
Case details for

Norton Siegel, Inc. v. Nolan

Case Details

Full title:NORTON SIEGEL, INC. (Formerly JAMES R. NOLAN CO., INC.), Appellant, v…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 11, 1938

Citations

253 App. Div. 906 (N.Y. App. Div. 1938)