
    Consolidated Smoked Fish Corporation, Appellant, v. Irving Rosen, Doing Business as Catskill Fish Company, Respondent.
   Appeal from a judgment entered in Sullivan county upon a verdict of a jury of no cause of action rendered in the County Court of said county; also appeal from order denying motion for a new trial. The action is for fraud and deceit, the plaintiff claiming that on July 8, 1935, the defendant falsely and fraudulently and with no intent of honoring and paying the same, delivered to plaintiff a certain check dated July 8, 1935, in the sum of $428, made by defendant and payable to the plaintiff, the check in question having been given in part payment for merchandise consisting of smoked fish, sold by the plaintiff to the defendant; that having established credit with the plaintiff by the giving of said cheek, the defendant ordered and obtained from the plaintiff further such merchandise amounting to $623.81, no part of which has been paid, and that by reason of said fraudulent acts of the defendant plaintiff has suffered damage in the sum of $623.81, with interest thereon from July 8, 1935. The defendant denies the fraud and claims that after giving the cheek in question he ordered said additional merchandise which when delivered to him was spoiled and worthless; that he immediately notified a representative of the plaintiff who agreed to call on defendant and adjust the matter and that defendant informed said representative that he had stopped payment on the cheek pending adjustment. The plaintiff now says that the verdict was against the weight of evidence and that certain erroneous rulings were made by the court below in the admission of evidence, in that it was improper for the court to permit the defendant to testify that upon receiving the spoiled merchandise he was informed by his employee that it was no good; also that it was improper for the court to permit the defendant to testify that before this present suit was brought the defendant had brought suit against the plaintiff. Judgment and order reversed on the law and facts, and new trial granted, with costs to the appellant to abide the event. Hill, P. J., McNamee and Crapser, JJ., concur; Rhodes and Heffernan, JJ., dissent, and vote to affirm.  