Hengen v. Lewis ( 1904 )

BISCHOFF, J.

In an action for fraud, based upon the defendant’s misrepresentation that he had funds on deposit with E. T. Oppenheim & Co., thereby inducing the plaintiff to pay him $50 upon a check drawn upon that firm, the justice dismissed the complaint on the ground that the instrument was not a check, but a draft. In form the paper was a “check,” as the word is customarily employed, and, until the distinction was suggested by the justice, it was considered a check by all the persons concerned. Moreover, as far as this action was to be affected, in substance it was a check, as defined by statute, being drawn upon an association of individuals engaged in thé business of banking. Neg. Inst. Law, §§ 2, 321; Laws 1897, pp. 720, 756, c. 612. To require the plaintiff to sustain the affirmative upon a wholly collateral matter, and to show that this firm made reports to the banking department, where the exact legal definition of the character of this pacer as a "check” or “draft” was entirely immaterial to the only issues the parties had come to try, would not seem to be a commendable method of procedure to the end that justice might be readily administered. .

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