Opinion
February 10, 1926.
Appeal from the Municipal Court, Borough of Manhattan, First District.
E. Lloyd Meyer, for the appellant.
Abraham A. Pariser, for the respondents.
Assuming, as established, for the jury so found, that the plaintiff is only an assignee of the note in suit, no evidence was presented by defendant to defeat his claim and a verdict should have been directed in his favor. The court below misinterpreted the dissolution agreement between the partners who are the payees of the note of which the defendant is the maker and the plaintiff the owner. By the terms of that agreement the note in suit was transferred to plaintiff's assignor, Benjamin Werthman. The other partner, Stepensky, lost all interest in it and had no authority to receive payment therefor. Payment by the defendant to the said Stepensky who had parted with possession of the note, did not extinguish the debt. If the defendant made such payment mistakenly his remedy is against Stepensky for its return. The plaintiff here is the holder of the note. No infirmities in it have been established nor has he been paid. That the note was given to plaintiff without consideration as defendant claimed and probably established, is no bar to recovery so long as plaintiff has the legal title.
Judgment reversed, with thirty dollars costs, and judgment ordered in favor of plaintiff as prayed for in the complaint.
All concur; present, BIJUR, DELEHANTY and WAGNER, JJ.