Braunberg v. Liebowitz , 159 N.Y.S. 1101 ( 1916 )

GUY, J.

Plaintiff sued to recover a deposit made by him with the defendant, under the following circumstances: The defendant engaged the plaintiff’s father to take charge of a farm owned by the defendant in New Jersey. To insure the faithful performance of the contract on the part of the father, defendant required that the sum of $100 be deposited. This sum the plaintiff testified that he paid the defendant. He expressly stated that it was not advanced to the father for the purpose of deposit, but that it was to enable the father to obtain the situation, and to secure the defendant in case the father failed for any reason to carry on the farm properly and for the stipulated term of one year. There is no dispute that the plaintiff’s father fully performed the contract on Ms part. It is difficult from a reading of the record to discover what the defense actually is. Much of defendant’s testimony tends to show that the venture was a losing one on liis part, and that he not only paid out large sums of money in carrying on the farm for which he received no return, but that he did, from time to time, loan plaintiff's father sums of money, aggregating more than the amount of the deposit, and which the father told defendant to charge against Ms personal account, and which the defendant evidently seeks to charge against the deposit. Reference is made in the testimony to the contents of some papers which were introduced in evidence by the defendant, but as these exhibits are not attached to the return we can form no estimate of their value. It may be that they might show that the deposit in question was money belonging to the father, and not to the plaintiff. Parties should, however, see to it that the record is complete before it is submitted or argument heard thereon. As the record now stands there is nothing from which it can be said that the money sued for was not that of the plaintiff, and the judgment in favor of the defendant must be reversed. Judgment reversed, and new trial ordered, with $30 costs to the appellant to abide the event. All concur.