Opinion
April, 1907.
Henry S. Schimmel, for appellant.
Gustavus A. Rogers, for respondents.
The uncontradicted evidence shows that the defendants owed one Berkowitz $200; that they gave him a check for $175; that Berkowitz went to plaintiff's saloon with the check, endorsed the same and delivered it to plaintiff; that plaintiff endorsed it and delivered it to his wife to be deposited in her bank, as plaintiff had no bank account in his own name; that plaintiff's wife endorsed the said check and deposited it in her bank; that defendants, owing to subsequent acts of Berkowitz, stopped payment on the check; and that when the check came back unpaid to plaintiff, he went to see defendants and asked them why they had stopped payment on the check. The plaintiff swears that he paid Berkowitz $175 in cash for the check. Defendants swear that at this interview, subsequent to the stoppage of payment, plaintiff told defendants that he had only advanced "$10 in drinks" on the check. Be that as it may, it is clearly established that the check was valid in its inception and that plaintiff took it without knowledge of any equitable defenses that defendants might have as against Berkowitz's right to payment of the check. Whether Berkowitz sold the check for its face value, or less, is no concern of the defendants, and plaintiff has shown himself by uncontradicted evidence to be a bona fide holder, and entitled to payment.
The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.
Present, GILDERSLEEVE, GIEGERICH, and ERLANGER, JJ.
Judgment reversed, and new trial ordered, with costs to appellant to abide event.