Botts v. Mercantile Bank
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, John C. Botts, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of October, 1914, as resettled by an order entered in said clerk’s office on the 15th day of October, 1914, denying plaintiff’s motion for a judgment on the pleadings and overruling his demurrer to two counterclaims.
1Dissent
Smith, J. (dissenting in part):
I agree with the court that the second counterclaim contains a valid set-off to the plaintiff’s claim. Raine appropriated the moneys of the bank and gave them to Foster, who had knowledge of the fact that the moneys so received by him were the property of the bank. This clearly raises an implied promise *884on his part to return the same, which implied promise is made the basis of the second counterclaim.
I am also convinced that the first counterclaim is sufficient as an offset to plaintiff’s claim. This counterclaim alleges that these moneys of the bank were given…
2Cases cited1 opinion
- Causidere v. BeersNew York Court of Appeals · 1865