Schneider, J.c.c. (temporarily assigned).
The defendant was indicted for a violation of N.J.S. 2 A:111-15, for the issuance of a check to one Karl Buss, which check was not paid. The defendant waived a jury trial.
The defendant was in the contracting business and was doing an alteration job for one Otto Heller. He engaged Karl Buss to do plumbing work for the sum of $666 on a verbal agreement, with one-half to be paid on completion of "roughing" and inspection and the balance on completion of job. The first payment was not made and Karl Buss completed the work.
Defendant admits he issued the check on November 15, 1956 and delivered it the same day to Karl Buss. The State proved that the check was drawn on an account in the Fair Lawn Radburn Trust Company, which account had been closed by the bank on August 5, 1956, some three months before the issuance of the check. The representative of the bank testified it was closed because all the money had been withdrawn. The defendant contends he did not know the account was closed but admits he knew there was no money in the account and there had been none in the account for at least three months.
Defendant has two defenses. One is that at the time of the issuance of the check, he informed the payee that he was in financial difficulties and asked him to hold the check for a day of so, and Buss said "O.K." Mr. Buss denies this conversation and the evidence shows he never told him when to deposit it. Buss deposited it the same day he received it, but the defendant admits he never inquired of Buss why he deposited it.
The court does not believe the conversation ever took place and finds no merit in this defense.
The other defense of the defendant is that the check was given for a past consideration and therefore no conviction may be had by reason of the decision of State v. Riccardo , 32 N.J. Super. 89 (App. Div. 1954).
The defendant testified that Buss completed the work on the job the night of November 14, 1956, and that he gave
him the check on the morning of the 15th. Buss testified the work was completed the afternoon of the 15th and the check delivered that morning. The owner of the house testified that the work was completed on the 14th and he moved in on the 17th. There was a leak a few days later (November 21) which Mr. Buss' employee repaired.
Time sheets were introduced with two slips showing working men's time on November 14 with none for the 15th. Buss contends that one was for the 15th but labeled the 14th by mistake.
The defendant filed a bankruptcy petition a short time after the issuance of the check.
I find that under our standards of proof in criminal cases that there is no adequate proof of any work on the 15th and that it would appear from the proofs that the work was completed ...