Lacey v. Steinhardt , 156 N.Y.S. 273 ( 1915 )

FINCH, J.

This action was brought to recover moneys loaned by the plaintiff to the defendant. The answer set up a defense of payment and a general release.

Plaintiff testified that he made various small loans to defendant during a period of about a year and a half, and such loans aggregated at least $1,579. Thereafter the plaintiff, the defendant, and the latter’s attorney had a conference, in which it was agreed that the plaintiff had advanced that amount, and that the defendant had already paid $540 on account. If these figures were correct, there remained due $1,039. The defendant at that conference paid $750 more, and received from the plaintiff a general release under seal. Plaintiff testified that the release was prepared by defendant’s attorney, who said it was a “receipt”; that he (the plaintiff) did not read it, but believed it to be merely a receipt «for the $750, though a copy of it was given to him at the time. He further testified that the defendant promised to pay the balance in a few days. If this testimony is true, plaintiff’s claim was not without evidence to support it.

The judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.