
    SKOLSKY v. HARVITT.
    (Supreme Court, Appellate Term.
    March 10, 1910.)
    Payment (§ 22)—Checks.
    Where defendant gave plaintiff a postdated check In payment for goods purchased, and plaintiff Indorsed it to a third party, who still holds it, this constituted payment, although the check has not been paid, and was a complete defense to an action for the price of the goods.
    [Ed. Note.—For other cases, see Payment, Cent. Dig. §§ 87, 88; Dec. Dig. § 22.*]
    Appeal from Municipal Court, Borough of Manhattan, Second District.
    Action by Jacob Skolsky against Louis Harvitt. From a judgment for plaintiff, defendant appeals.
    Reversed, and new trial ordered.
    Argued before SEABURY, GUY, and WHITNEY, JJ.
    Kahn & Hegt, for appellant.
    Elias E. ICohner, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   GUY, J.

This is an appeal by defendant from "judgment in favor of plaintiff. The action is for goods sold and delivered; the only defense being payment. The evidence shows that defendant gave to plaintiff a postdated check in payment of the amount due, which check was never paid, but that plaintiff had parted with possession of the check "by indorsing and delivering it to a third party, who still retains possession thereof. Under the authority of Fitch v. McDowell, 145 N. Y. 498, 40 N. E. 205, this constitutes payment, and is a complete defense to this action.

The judgment should therefore be reversed,, and a new trial ordered, with costs to appellant to abide the event. A1Í concur.  