Brandt v. Public Bank — 139 A.D. 173

Majority

p. 173

Max Brandt, Appellant, v. The Public Bank, Respondent.

Second Department,

June 17, 1910.

Headnote

Evidence—written memoranda — admissibility of whole paper—banking —notice to stop payment on check—dismissal of complaint.

If a party uses books of account or other papers against his adversary he makes them evidence against himself on the same subject; and, if part is used, the whole is admissible.

Where in an action by a depositor against a bank to recover money paid on plaintiff’s check after notice to stop payment, it appears from memoranda on the stop payment notice which was introduced in evidence by the plaintiff that although it was dated November 1, 1909, it was-not received by the bank until the fifth of the month and that this was after .the check had been paid, " the complaint should be dismissed.

p. 174

Appeal by the plaintiff, Max Brandt, from .a judgment of the Municipal Court of the city of New York, borough -of Brooklyn, in favor of the defendant, rendered on the 16th day of March, 1910,. dismissing the complaint, at the-close.of the plaintiff’s case.

Morris Salpeter, for the appellant.

Henry Fluegelman, for the respondent.

The. plaintiff sued to recover fifty dollars which, it was claimed, the defendant had paid out upon the plaintiff’s check, after having been notified that the plaintiff wanted to stop payment. At the close of plaintiff’s evidence, the court granted defendant’s motion to dismiss the complaint, on the ground that the plaintiff had failed to produce evidence to sustain a cause of action.. The plaintiff appeals to this court.

The plaintiff, in support of his cause "of action, introduced in evidenóe, without qualification, a notice to stop payment on the plaintiff’s check. This notice was a printed form, filled in by the plaintiff, and was dated on the first day of November, the same date which appears upon the check, though it is claimed that the check was written and delivered on the 31st day of October, 1909. This blank, which is about the size of an ordinary check, had the foliow- . ing words printed upon it: “ In receiving the above stop payment notice, it is agreed that this bank will use all due diligence, but will not be held liable in any event.” But in addition to these words, there was a written memorandum,' evidently by the bank officers^ saying: “Received Nov. 5, ’09,” and on the upper left-hand corner there was a like memorandum, “ Pd. report by M. Bank mth 4,” and the indorsement on the check, which is likewise in evidence without objection or limitation, shows that the check was paid by the Metropolitan Bank on the third day of November, which would be in harmony with the memorandum that it was reported on the, fourth of the month by the. M. Bank. It thus appears from the plaintiff’s own evidence that, while the stop pay-, ment notice is dated November first,"it was not received by the Public Bank until the fifth of that month, while the payment was made by way of the Metropolitan Bank on the fourth. The rule is

p. 175

that if a party uses books of account or other papers against liisadversary, he makes them evidence for him on the same subject. They are like any declaration or admission, by writing or orally; if part is used, the whole relating to the same matter is admissible (Pendleton v. Weed, 17 N. Y. 72 , 76; Dewey v. Hotchkiss, 30. id. 497, 500), and, being in the case, they must be given force. Passing over the disclaimer of responsibility on the part of the bank, which was a part of the stop payment notice, as well as one of the regulations printed in the defendant’s pass book delivered to the plaintiff, there was evidence in the case to establish that the notice was not given to the bank until the 5tli day of November, 1909, at least one day after its payment by the defendant, and this, of course, justified a dismissal of the compjaint.

The judgment appealed from should be affirmed, with costs.

Jenks, Burr, Bioh and Carr, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs, without prejudice to a new action. '

Cases cited

Pendleton v. Weed 17 N. Y. 72 N.Y. at 76 p. 175