Levy v. Klepner , 37 N.Y.S. 582 ( 1896 )

McCarthy, J.

The papers on appeal filed with the clerk •of the court ¡appear to have been settled and ordered on file by the trial justice on January 20, 1896.

The, case has not been as well presented as it might have been.

“ Gentlemen of the-Jury.— If yon believe that this check sued on was given- for the-.consideration described by. the witness, in other words, to meet the. note falling; due; and to .be applied in payment of that note, and that it .was not used for that purpose, but was transferred to the plaintiff before the -date it was made payable, as appears from the testimony here, then your verdict should be for the defendant.

“If you believe • that that check was given to Ratkowsky for a valuable consideration moving'between the.parties, and it was-transferred to this plaintiff, even though before-the date of ■its payment, the plaintiff would be a Vona fide holder for value, and entitled to recover.” ' ,.

Plaintiff’s counsel asks the court to charge the jury that the giving of the note by the defendant Ratkowsky to the defendants -Klepnef was-a-consideration for the giving of- the check by Klepner to Ratkowsky.

The Court : “ All .the. facts are for the jury, and what the consideration for the check was it will be for the jury to say.

“If-they find there was no consideration,.they-will find for the defendant.”

Verdict for the defendant.

Plaintiff’s counsel asks for a new trial. Motion. denied. Exception..

No .exception was. taken to the same.

We think, however, the trial justice was clearly in error in his charge to the jury, as to the- law of .the- case, and. when it .appears, as in this case, that the jury are guided in the rendition of their verdict solely by. the erroneous charge, it ought to be set aside, even though no exception has been taken.

Judgment and order is, therefore, reversed, .and a new -trial granted, with costs to the appellant to abide the event.

Van. Wyck, Ch. J., and. Schuchman, J., concur.

.Judgment and order reversed, and new-trial granted, with costs to" appellant to abide event. ‘