Galambos v. Hershkowitz , 155 N.Y.S. 346 ( 1915 )

SHEARN, J.

The claim is that plaintiff, while indebted to a Mrs. Stein for $300 represented by his notes, which were long overdue, gave his note for $200 to the defendant, at defendant’s request and representation that defendant would get Mrs. Stein to accept the $200 note in liquidation of the $300 debt; that instead defendant used the note for his own purposes, and trans Cerrcd it to another, who- recovered judgment thereon against this plaintiff; that execution was issued on the judgment and returned unsatisfied; and that the plaintiff herein was examined in supplementary proceedings, but the judgment remains unpaid.

Defendant contended that he gave plaintiff $200 cash for the note. How the plaintiff could believe that his creditor, holding notes for $300 long overdue, would accept his further note for $200 in full settlement, is not apparent or explained. It suffices, however, to say that, assuming the other elements in an action for fraud and deceit were established, there was no proof of damage, except to a nominal amount. The entry of judgment and issue of execution thereon against the property of one who is judgment proof does not establish damage to the amount of the judgment entered.

Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event. All concur.