
    SPIRO et al. v. MAIMAN et al.
    (Supreme Court, Appellate Term.
    June 22, 1905.)
    Payment—Acceptance oe Note—Right to Recover on Original Debt.
    A creditor taking a note for Ms claim, believing that it was indorsed as agreed, may, on finding that it was not so indorsed, and objecting thereto, recover on the claim without returning the note; no demand for its return having been made by the debtor.
    [Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Payment, § 141.] MacLean, J., dissenting.
    Appeal from Municipal Court, Borough of Manhattan, Ninth District."
    ■ Action by Abraham I. Spiro and another against Morris Maiman and another. From a judgment for plaintiffs, defendants appeal.
    Affirmed.'
    Argued before SCOTT, P. J., and DUGRO and MacLEAN, JJ.
    Louis Scheuer, for appellants. .
    Spiro & Wasservogel, pro se.
   SCOTT, P. J.

There is abundant evidence that plaintiff never accepted the $200 note which was left with him. He took it, believing it to have been properly indorsed, and, as soon as he found that it was not, he objected that it was not what he had agreed to take. Of course, he is bound to return it on demand, but no demand has been made.

The judgment should be affirmed, with costs.

DUGRO, J., concurs.

MacLEAN, J.

(dissenting). The plaintiffs brought this action for two causes—one an account stated, and balance of $200 unpaid, and the other for services rendered to the value "of $28—and recovered judgment for the full amount against the defendants, as copartners. In testifying to the first cause, the plaintiff Spiro stated that he had a conversation with the defendants on or about November 2, 1903; that Mr. Maiman and one Mr. Buckhalter were present; that they finally struck a balance of $350 due the plaintiffs, and that he took a note indorsed by Mr. Buckhalter, and made by Mr. Maiman, or the reverse, for that amount; that about a week later they came back, and Mr. Maiman said that they would give $150 on account of that note, and that they would give another note for $200; that this was agreeable; that the money was paid, and that he prepared the note for them to sign and indorse the same as the other; that he was called aside, and that, while engaged talking to somebody else, they had left the note on the desk; that he took the note and put it in the safe, but later discovered that the note was made by Buckhalter, and not indorsed by Maiman; that he told Maiman, “You forgot to indorse that note,” and that he replied: “It is all right. I will pay it to you anyway. So it does not make any difference”—and that he kept it. He may not sue for an account stated, and keep the note received and accepted in settlement thereof. The judgment herein must therefore be reduced by the sum of $200, the amount of account stated, and, as thus modified, affirmed.

Judgment should be reduced by the sum of $200, and, as thus modified, affirmed, without costs to either party.  