Berman v. Zuckerman , 49 N.Y.S. 1070 ( 1898 )

Per Curiam.

The judgment should, be reversed for the reason . that, when the' defendants showed that the note had been wrongfuly diverted from the purpose for which it had been given, the plaintiff did not. sufficiently re-establish his- position as a bona fide holder to entitle the justice to find that he took the note in good faith and without knowledge of the wrongful diversion. See American Bank v. N. Y. Packing Co., 148 N. Y. 698. In this connection, attention is called to the fact that there -was evidence given by defendants tending to show that the plaintiff himself was present at the time that the defendants arranged with Lunitz for . the terms upon which the note was to be delivered to Samuelson. The plaintiff, when subsequently put on the stand, was not asked whether he was so present at that time, nor was any evidence ‘ given by him tending to contradict the testimony that had been given by the defendants, This, we think, should have been given.

We also think that the justice should have allowed the question, put to plaintiff on cross-examination, “ Where did you get.these fifty dollars? ” j

Judgment appealed from reversed, and a new trial ordered, with, costs to appellants to abide the event.

Present: Beekman, P. J., Gildersleeve and Giegerich, JJ.

Judgment reversed and new trial ordered, with costs to appellants to abide event.