Kalb v. Chemical Bank New York Trust Co. — 64 Misc. 2d 824

Majority

p. 824

Mollie Kalb et al., Respondents, v. Chemical Bank New York Trust Company, Appellant.

Supreme Court, Appellate Term, Second Department,

September 23, 1970.

Cravath, Swaine & Moore (John B. Wynne, John W. Barnum, Howard O. Kristol and Martin Michaelson of counsel), for appellant. Abraham M. Feinstein for respondents.

In our opinion, the stipulation was inadequate and the proof insufficient to permit a determintaion of the issues presented, particularly with regard to all relevant facts and circumstances preceding, during and subsequent to plaintiff Mollie Kalb’s execution of the withdrawal slip and the presentation of her passbook and withdrawal slip to defendant bank by a person other than said plaintiff. Moreover, it was error to consider testimony adduced at an examination before trial without afford

p. 825

ing defendant an opportunity to object to specific questions, which right had been expressly reserved for the trial.

The judgment should be unanimously reversed and a new trial ordered, with $30 costs to defendant to abide the event.

Present — Schwartz ward, J. P., Rinaldi and Cone, JJ.

Judgment reversed, etc.