
    VAN NORDEN TRUST CO. v. SPAR.
    (Supreme Court, Appellate Term.
    June 30, 1908.)
    Payment—Weight and Sufficiency of Evidence.
    Judgment for defendant, in an action based on plaintiff having through mistake surrendered defendant’s note for $150 on payment of only $100, should be reversed for insufficiency of evidence; plaintiff’s testimony that defendant paid only $100 being positive, and defendant having at first testified that he did not remember at all how much the note was for, but that he knew he paid more than $100, though he did not know how much he paid, and having afterwards, in response to leading questions, said he paid the note in full, and having still later sworn tho-t he knew the note was for $150.
    Appeal from Municipal Court, Borough of Manhattan, Ninth District.
    Action by the Van Norden Trust Company against Isidor Spar. From a judgment for defendant, plaintiff appeals.
    Reversed, and new trial ordered.
    Argued before GILDERSLEEVE, P. L, and MacLEAN and SEA-BURY, JJ.
    Parsons, Closson & Mcllvaine, for appellant.
    Lewis Goldberg, for respondent.
   PER CURIAM.

The complaint alleges that the defendant made and delivered his promissory note to one Strawgate for $150; that before maturity Strawgate indorsed and delivered said note to the plaintiff, and upon delivery the plaintiff paid Strawgate $100, and agreed that upon the note being paid it would pay Strawgate $50; that subsequently, when the note became due, the defendant paid the plaintiff $100, which through an error of the plaintiff’s receiving teller was accepted and the note delivered to the defendant; that the plaintiff was compelled to and did pay Strawgate the balance of $50. The plaintiff brings this action to recover the sum of $50 from the defendant.

The receiving teller testified to his error in delivering the note upon the receipt of $100 from the defendant. The records of the plaintiff, made at the time of the receipt of the money, also corroborate the teller as to the amount received from the defendant. Strawgate testified to the fact that he collected $50 from the plaintiff after he had commenced suit for its recovery. The defendant on the trial claimed that he had paid the plaintiff $150; but his testimony was very indefinite, and certainly did not prove the payment of this amount. In response to his counsel’s question as to how much the note in question was for, he answered: “I don’t remember at all.” Several times he testified that he knew he paid more than $100, but that he did not know how much he paid. In response to leading questions he after-wards said that he paid the full amount of the note.' This testimony is not convincing, however, as he asserted that he did not know the amount of the note, although he subsequently changed his testimony upon this subject also, and swore that he knew the note was for $150. The defendant’s testimony does not establish that he paid $150, but merely that he paid more than $100; and, in view of the positive testimony that he paid only $100, the judgment rendered in his favor should be reversed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.  