
    SUPREME COURT, APPELLATE TERM,
    DECEMBER, 1900.
    Max Levy, Respondent, v. Morris Temerson, Appellant.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the plaintiff.
    Louis Levy, for appellant.
    Isidor Cohn, for respondent.
   Beekman, P. J.

In this case the plaintiff sues upon a check for seventy dollars, made hy the defendant, to the order of Gran & Lehmann, which the latter indorsed over to the plaintiff. It is undisputed that the check in question was made and delivered, to the payees for an indebtedness owing by the defendant to them. There is evidence tending to show that the payees were indebted to the plaintiff in an equivalent amount, and that the check was indorsed and delivered by them to him in payment of such indebtedness. There are no defenses whatsoever to the payment of the check which existed prior to the delivery of the same to the plaintiff. Upon receiving the check the plaintiff presented the same to the hank upon which it was drawn for payment, but payment was refused on the ground that the defendant’s account was not good for such an amount. The defendant claims that subsequently thereto he paid to Gran & Lehmann the amount of the check. He did not, however, receive the check when such alleged payment was made, through some oversight on his part, as he claims. There was a sharp conflict of evidence on the trial with respect to some of the facts which were litigated thereon, but inasmuch as the trial justice decided in favor of the plaintiff, he must be deemed to have found the facts in a manner most favorable to him. There was no evidence whatever in the case tending to show that the plaintiff ever authorized Gran & Lehmann to receive payment of the check on his account or that he was ever apprised of the fact that any such payment, if made at all, had been made to Gran & Lehmann. Under the circumstances, the plaintiff, still continuing to hold the check, was in no wise affected by any such alleged payment. As there was sufficient evidence in the case to support it, the judgment in favor of the plaintiff must be affirmed.

Giegerigh and O’Gorman, JJ., concur.

Judgment affirmed, with costs.  