Maslon v. Sprickerhoff

Truax, J. This action was brought to recover the amount of a check made by the defendant to one Rabinowitz and by him transferred to the plaintiff. The sole question litigated was whether or not the plaintiff was a holder for value in due course. The check was given to Rabinowitz on the evening of December 7, 1905, and on December 8, 1905, the defendant stopped payment thereon. The plaintiff testified that he got the check the night of December 7, 1905, of Rabinowitz, paying in cash the full face value of the check. Aside from statements alleged to have been made by Rabinowitz to several persons after the time payment of the check was stopped by the defendant, there is but slight testimony tending to contradict the testimony of the plaintiff as to the bona fides of his ownership. These alleged statements are not claimed or shown to have been made in the presence of the plaintiff and were objected to and were received only upon the promise of the defendant’s attorney that they would be connected with the plaintiff. This not having been done, the plaintiffs attorney moved, at the close of the case, to strike from the record all such testimony. Decision upon this motion was reserved by the trial judge, who subsequently gave a judgment in ^avor of the defendant. As the record contains nothing from which we can determine what disposition was made [645] of the motion, we must assume that it was decided in favor of the successful party. Herzfeld v. Reinach, 44 App. Div. 326-328; Hillman v. De Rosa, 46 Misc. Rep. 261. Such testimony was clearly inadmissible (Paige v. Cagwin, 7 Hill, 361; Clews v. Kehr, 90 N. Y. 633), and what effect it may have had upon the mind of the court in determining the issue in favor of the defendant it is impossible to say,- and the judgment must, therefore, be reversed. Scott and Bisohoff, JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event.