Standard Building Supply Corp. v. Hotel Abbey Holding Corp. 24 A.D.2d 765

In an action to recover the amount of loans allegedly made by the plaintiff to defendant, plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered January 20, 1964 after a nonjury trial upon the court’s opinion-decision, which dismissed the complaint. Judgment affirmed, with costs. Plaintiff’s evidence was to the effect that it delivered checks to defendant and that there had never been an indebtedness from plaintiff to defendant. Although the normal presumption arising from the delivery of a check is that it was delivered in payment of a debt, proof that no such debt existed creates the alternative presumption that the check was intended to operate as a loan (Nay v. Curley, 113 N. Y. 575; Shea v. McKeon, 264 App. Div. 573; Pacific Mgt. Corp. v. Toumaniantz, 14 A D 2d 864). Defendant introduced substantial proof to the effect that the -transactions were not loans. This evidence removed the presumption of a loan (see St. Andrassy v. Mooney, 262 N. Y. 368, 371; Thompson v. Wallin, 301 N. Y. 476, 494, app. dsmd. 342 U. S. 801; Matter of Seigle, 289 N. Y. 300, 303). Plaintiff adduced no additional proof that the transactions were loans. Beldock, P. J., Ughetta, Brennan, Rabin and Benjamin, JJ., concur.