Rosinoff v. Altshul

• Decision Date: 25 January 1924
• Docket Number: No. 24.,24.
• Parties: ROSINOFF et al. v. ALTSHUL.
• Court: New Jersey Supreme Court

123 A. 376

ROSINOFF et al.

v. ALTSHUL.

No. 24.

Court of Errors and Appeals of New Jersey.

Jan. 25, 1924.

Appeal from Supreme Court.

Action by Henry Rosinoff and another against Fannie K. Altshul, administratrix of Victor I. Altshul, deceased. Judgment for plaintiffs, and defendant appeals. Affirmed.

In the Supreme Court the following per curiam was filed:

"This is a suit on a promissory note for $10,000, given by Victor I. Altshul, under a trade name. It bears * date of June 1, 1918, payable six months after date, to the order of E. C. Altshul, and is indorsed by him, and also assigned by a formal assignment after maturity to the plaintiff Rosinoff.

"Victor I. Altshul died, and the defendant Fannie K. Altshul, his widow, was appointed administratrix. She contests the claim of the plaintiff on the note, and at her instance E. C. Altshul was brought in as a party plaintiff. The note was" proved and offered in evidence. There is no serious controversy as to its validity in its inception. An attempt was made to prove payment. This proof consisted of some statements made by E. C. Altshul which were supposed to indicate that his brother owed him $5,000 instead of $10,000, and also proof that his brother had turned over to him seven notes, six being for $2,000 each and one for $1,000.

"Some reliance was placed by the defendant on the alleged suspicious conduct of E. C. Altshul after his brother's death, but this evidence was too hazy and uncertain to have any weight. The only question was whether there was proof of such connection between the seven notes and the $10,000 note that the case ought to go to the jury. We think not. The presumption is in favor of the holder of such a note, and while Rosinoff's title can be no better than that of E. C. Altshul. we think the evidence on the part of the defendant was so meager and uncertain that it cannot justify any inference of payment. It is an attempt to make conjecture do the work of facts.

"We think, therefore, the trial judge was right in directing a verdict for the plaintiffs. The judgment is affirmed, with costs."

J. Raymond Tiffany, of Hoboken, for appellant.

Gross & Gross, of Jersey City, and Julius Lichtenstein, of Hoboken, for respondents.

PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion of the Supreme Court.

For affirmance: The CHANCELLOR, Justices PARKER, MINTURN, KALISCH. BLACK, and KATZENBAOH, and Judges HEPPENHEIMER, GARDNER,...