
    Martin v. Pollatchek.
    (City Court of New York
    General Term,
    April, 1893.)
    Plaintiff sued defendant, who agreed to pay all the lawful debts of the firm of P. & Son, and alleged that said firm received from plaintiff seventy dollars to the use of plaintiff. There was no allegation of fraud or mistake. He proved a sale of bonds to him on the installment plan. Held, that he was properly nonsuited.
    Appeal by plaintiff from judgment in favor of defendant entered upon a nonsuit.
    
      A. I. Sire, for plaintiff (appellant).
    
      O. B. Gould, for defendant (respondent).
   YAn Wyok, J.

The plaintiff sues defendant, who agreed to pay all the lawful debts of the firm of Sclireiber, Pollatchek & Son, and alleges that such “firm received from plaintiff, seventy dollars to the use of plaintiff.” One-lialf of this sum, to wit, thirty-five dollars, was made up of seven payments of five dollars each under one agreement, and the other half under another and similar agreement, and all that is said of the one applies to the other. The plaintiff on trial offered and had marked in evidence an agreement or certificate Mo. 2699 signed by said firm, and by them delivered to him when he made the first payment of five dollars in June, and which provided among other things, that “ On payment of five dollars as a first installment and of further twenty monthly installments of five dollars each, payable at our office on the first day of each month, we agree to deliver to bearer the following five original bonds to wit;” and this agreement further provides that, “ By accepting this certificate the buyer signifies his consent to the conditions therein contained, and cannot thereafter rescind his agreement thereunder.” The proof shows that he paid six other installments of five dollars . each in the next succeeding six months, and that upon each of such payments he received from the firm a receipt as follows: “ Eeceived from Adam Martin five dollars as second payment on certificate Ho. 2699.” And so on as to the third, fourth, fifth, sixth and seventh installments paid by him. This action is to recover these seven payments as money received by said firm to the use of plaintiff, and there is no allegation of fraud or mistake. However, the plaintiff was allowed against defendant’s objection to introduce evidence of the sayings of the firm, when this agreement Ho. 2699 and the other similar one was delivered to plaintiff as follows: “ He said that I should keep them and pay him five dollars on each, and I said ‘ What for ? ’ and he said that they were lotteries and that if I paid five dollars apiece, I should get my money back. I told him that I did not want them, and he said, You be sure and.keep them and you will be sure of your money. ’ ” The plaintiff took them in June, and then paid first install-meat and continued to pay the monthly installments for six months thereafter, keeping the agreements of sale meantime, and producing them on trial. It is conceded by plaintiff that these bonds sold on this installment plan, are authorized by the decisions of the Court of Appeals.

The plaintiff was properly nonsuited at trial and the judgment is affirmed with costs.

Mo Gown and Fitzsimons, JJ., concur.

Judgment affirmed.  