
    HAMILTON v. MAHN.
    (Supreme Court, Appellate Term.
    November 24, 1905.)
    .Appeal—Reversal and Remand.
    Where the issue on a counterclaim was whether plaintiff, as contended by him, owed P., or, as contended by defendant, owed him and he owed P., and, while it appears that P. believed plaintiff owed defendant and defendant owed him, the testimony is incomplete and unsatisfactory, judgment for plaintiff will be reversed, and a new trial granted.
    Appeal from Municipal Court, Borough of Manhattan, Eleventh District.
    Action by John W. Hamilton .agiinst Henry B. Mahn.' From a iudgment for plaintiff, defendant appeals.
    Reversed.
    Argued before SCOTT, P. J., and GILDERSLEEVE and Mac-LEAN, JJ.
    . Edward C. Ripley, for appellant.
    I. Robert Spear, for respondent.
   PER CURIAM.

On March 15, 1904, plaintiff loaned defendant $20, and on March 22, 1904, he loaned defendant an additional $25. On June 23, 1904, defendant paid plaintiff on account $10. Plaintiff brought this action for the balance of $35, and obtained judgment in his favor. Defendant counterclaims $100, admitting plaintiff’s claim of $35, and claiming a balance by way of counterclaim of $65. It is conceded that on June 25, 1904, a check of the Legal Advice Society of the United States, signed by one Percy F. Pimm as treasurer, and defendant as secretary, payable to plaintiff, was delivered to plaintiff by defendant on or about June 25, 1904, and that plaintiff got the money on the same. Plaintiff claims he owes this money to Pimm, as it is conceded plaintiff has not repaid the same; but defendant claims plaintiff owes this money to him. This is the sole issue in the case.

Defendant admits he got the check from Mr. Pimm, but says he obtained it for Mr. Hamilton at his request. It is made payable to Mr. Hamilton, the plaintiff, as above stated. Defendant says he borrowed it from Pimm and is responsible for it; that he got it from Pimm to pay plaintiff. Hamilton (plaintiff) admits he got the money on the check, and that he received the check through defendant. Under these circumstances, the evidence of Pimm himself would seem most important in determining the controversy. He is called as a witness, and testifies that he knows the parties and that his name is on the check. He is then asked:

“Do you know what that money was for? (Objected to by plaintiff, and ruled out,- under exception by defendant.) Q. Was that check drawn for the purpose of loaning to the plaintiff in this action this sum of $100 by the defendant in this action? (Objection sustained. Exception by defendant) Q. Do you know to whom that money was paid? A. Mr. Hamilton, plaintiff. Q. Has it been repaid to you? A. No.”

Cross-examination by plaintiff’s counsel:

“Q. Do you consider that Mr. Hamilton, plamtiff, owes you that money? A. I consider that he owes it to Mr. Mahn, the defendant.”

This answer was immediately stricken out on .plaintiff’s motion, under an exception by defendant. He (the witness) is then asked by plaintiff’s counsel:

“Q. Do you consider the money due you? A. From Ool. Mahn [defendant! I do.”

This response, also, was immediately stricken out at plaintiff’s request, and defendant excepted. He is then asked:

“Q. Do you consider the money due you from Mr. Hamilton? A. No; not on that check.”

It is very clear that Pimm, the maker of the note, by whom it was paid, believed that plaintiff owed defendant, and that defendant owed him (Pimm), the $100 so received by plaintiff. The testimony, however, is incomplete and unsatisfactory, and’we think that in the interests of justice a new trial should be had, when the parties can present more complete and better proofs of the actual state of facts.

Judgment reversed, and new trial granted, with costs to abide the event.  