First Nat. Bank of Waverly v. Winters — 139 N.Y.S. 426

Majority

p. 426

FIRST NAT. BANK OF WAVERLY v. WINTERS.

(Supreme Court, Appellate Division, Third Department.

January 16, 1913.)

Headnote

. “Order allowing amendment to the complaint, áffifmpci, without, posts. Xudgihent and order denying áeW trial reversed, and üeW'.tríáí ''granted,'" with''costs to appellant to abide-evént, ón the ground that-:ft: was error •tp-:perniiil"th!e plaintiff to .prove: withdrawals of1 deposits not shown-:to .be•>those stated ,in

,0n'motion ; for reargumeht. Denied, order allowing amendment .affirmed, judgment an A order.'denying'new' .trial reversed; "arid.néW .trial, granted. Decision 'rnodified,'so ag",to read;, ./■■

p. 427

its f>iU of particulars, and also on. the ground that it was error to. refuse. to. admit' evidence offered hy the defendant of publications of the report of the. insurance department in reference to irregularities in the administration of the National-Protective Legion of Waverly, N. Y.”

For former opinion, see 138 N. Y. Supp. 1115 .

Hinman, Howard & Kattell, of Binghamton, for the motion;

Byram L. Winters (James Moore, of Oneida, of counsel),- opposed:

It.is urged upon the motion .for a reargument that the decision.of the court would be a. warrant for the defendant to show upon a-retrial the publications of. the insurance report as a part of his defense. The court has held that those publications were made competent, simply by the evidence offered on the part.of .plaintiff as to.the withdrawal of deposits; that the defendant'might show these facts in answer to such evidence for .the purpose of showing that the withdrawal of deposits may have been caused otherwise than by .reason of the libel of the defendant. If such evidence, .on behalf of ¡plaintiff had not been in the case, it is clear that the evidence would not have been competent.

The motion for a reargument should be denied.

HOWARD, J.,- not sitting.