Robbins v. Bank of M. & L. Jarmulowsky ( 1904 )

FREEDMAN, P. J.

The evidence in this case given by both parties is very obscure and uncertain, and a judgment based upon the testimony given by the plaintiff ought not to be allowed to stand. John Becker was the only witness sworn on behalf of the plaintiff. He testified that he opened a depositor’s account with the defendant bank, and offered in evidence a book containing an account with the bank and M. Becker & Son. This witness further testified that he had assigned his claim against the bank to this plaintiff, but he failed to show who M. Becker Sc Son were, or what connection he had with them, or what authority he had to assign an account belonging to them as shown by their bankbook offered in evidence by him. Becker further claimed that there was a balance due him from the defendant bank, which he had demanded, and the bank had refused to pay. The only testimony given in support of this was a check drawn on the defendant bank, signed “M. Becker & Son,” for the sum of $137.50, which had^evidently been refused payment for the reason that there were “not sufficient funds.” It is also apparent from a reading of the testimony that the assignment from Becker to the plaintiff, if any was ever made, was in writing, and his paroi testimony regarding it should have been excluded by proper objection thereto. The record presents a very unsatisfactory situation. There is nothing in the record binding upon or precluding M. Becker & Son from instituting an action and recovering from the defendants upon the same claim upon which plaintiff has recovered a judgment herein.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.