
    Eugene H. Block, Appellant, v. Charles Garfiel et al., Respondents.
    Appeal from a judgment dismissing the complaint herein, and from an order denying the plaintiff’s motion for a new trial.
    Epstein Brothers (Jesse S. Epstein, of counsel), for appellant.
    Ralph Nathan, for respondents.
   Scotchman, J.

The complaint sets up a cause of action, for goods sold and delivered, to the amount of $147.47. The answer admits the sale and delivery of but $137.06 and sets up a counterclaim, or set-off, of $13.48 for damaged goods which were returned, and payment of the balance by delivery to and acceptance by the plaintiff of a check for $123.58, in payment of the difference.

The appellant (in his brief), for the purpose of this appeal, admits that the defendants purchased only $137.06 worth of merchandise and had a counterclaim for $13.48, leaving a balance of $123.58, which the plaintiff was entitled to recover, if payment thereof was not made. This reduces the consideration of this appeal to a single question, to wit: Can the plaintiff recover on the cause of action for goods sold and delivered; or is he barred by the giving of the defendants’ cheek? At the trial, the defendants, to prove the payment, showed, that the plaintiff said he would send for a check and take the piece of goods back; that the defendants delivered the goods, worth $13.48, with a check for $123.58, to a clerk of the plaintiff; that the clerk signed the receipt and took the check; that the young man came back the same day with a piece of goods and a check and returned them to the defendants, saying that the plaintiff did not intend to allow for the piece of goods; that the defendants again insisted that it was correct, and the young man took the goods and the check back to the plaintiff, and in the course of two hours the young man returned again and left the goods and check with the defendants.

The defendant Bernstein testified: “ Mr. Block, the plaintiff, returned the check. * * * He, plaintiff, received nothing for his goods. * * * Plaintiff can have his check any time he wants it. I hold it as it was made out. I have the check, but I offered it to the plaintiff.” On these facts the jury rendered a verdict in favor of defendants.

A check is not a legal tender. Grassy y. Schneider, 50 How. Pr. ' 134. The delivery of defendants’ check to the plaintiff did not ■ operate as payment of the pre-existing debt incurred by the sale • and delivery of the goods; particularly not, when the check was ■ returned, and was in the defendants’ possession when suit to re- ■ cover the debt was commenced, and has remained in their posses-sion ever since. Strong v. Stevens, 4 Duer, 668; Bradford v. Fox, 38 N. Y. 289. The jury’s verdict is erroneous. The plaintiff was clearly entitled, on the evidence, to a verdict of $123.58.

-The appellant makes the point that judgment absolute should be «ordered for the plaintiff for $123.58. This we cannot do. The plaintiff suing for $147.47 and defendants interposing a general denial and a counterclaim of $13.48, necessitates a new trial. Plaintiff made no motion for the direction of a verdict, but, after ihe judge’s charge, he made a request to charge “ that in any event the jury must render a verdict for plaintiff for $123.58.”

Judgment and order appealed from reversed, and a new trial granted, with costs and disbursements to the appellant to abide the ©vent.

O’Dwyer, J., concurs.

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