
    Frank Machauer, Respondent, v. Rube Robert Fogel, Appellant.
    (City Court of New York, General Term,
    July, 1897.)
    Payment.
    A payment must be made to the party entitled thereto.' And Where It appears that a person, after having ordered printing to be done by one who subsequently abandoned the work, had it finished by another person, who was a printer; and, subsequently, instead of paying the printer, paid his former partner a sum which was only about half the value of - the work, and, after taking a receipt from him, compelled the former partner to give this sum to the person who had abandoned the work after having performed a part of it, the facts do not constitute any proof of payment to the printer which can constitute a defense to an action brought by his assignee to recover for the value of the work.
    Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial. '
    
      Townsend & Dyett, for appellant.
    T. Darlington, for respondent.
   Van Wyck, Ch. J.

This is an appeal from a judgment entered herein on a verdict rendered by a jury, and from the order denying a motion for a new trial made on the judge’s minutes.

This action was brought by plaintiff as assignee of a-claim of one Abraham Strauss against the defendant for work, labor and services in printing 6,000 catalogues.

The facts appear to be that the defendant Fogel employed one Fragner to do a job of printing work; that Fragner after doing about one fourth part of the work, was foreclosed so that he could not complete the job; that thereupon the defendant employed Strauss to take the work so far as done and complete the job; that after Strauss had finished the work at another place, the defendant, instead of paying Strauss therefor, conceived the idea that he could make a better settlement with a former partner of Strauss (one Michael) and gave him a check for $260 in full settlement of work worth $496, and then compelled Michael, after getting a receipt, to give the $260 to Fragner.

The payment to Michael or to Fragner by the defendant was wholly without the consent of Strauss and effects no discharge of the defendant.

The case was fairly submitted to the jury under *an impartial charge, to which charge no exception was taken and they rendered a verdict in favor of the plaintiff. The evidence is amply sufficient to sustain that verdict. Judgment appealed from affirmed, with costs.

McCarthy and Sohuchmakt, JJ., concur.

Judgment affirmed, with costs.  