Sage v. Burton , 70 Hun 600 ( 1893 )

PEE CURIAM.

The defendant failed to show any authority in Abbott to indorse the check. On the contrary, it appeared that he had no such power. Certainly, without any proof of error or mistake in plaintiffs’ account, which is admitted by the answer, he was not shown to have possessed any power, as agent of plaintiffs, to receive a check for $100 less than plaintiffs’ conceded account in payment thereof. The check with which defendant claims to have paid the account set out in the complaint was produced on the trial by defendant, with a forged indorsement, and hence was then in defendant’s possession, unpaid. We think defendant did not show payment of plaintiffs’ conceded account, and hence that it was error to nonsuit. The judgment should be reversed, and a new trial granted, costs to abide the event.