Hyperlawhypertext legal database Abraham v. American Exchange National Bank 159 N.Y.S. 396

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Abraham v. American Exchange National Bank

159 N.Y.S. 396 Court N.Y. App. Div. Decision date 1916-06-02 English

Delivered by SMITH, J.

Contents

Majority

p. 396
(174 App. Div. 854)
ABRAHAM v. AMERICAN EXCHANGE NAT. BANK.
(Supreme Court, Appellate Division, First Department.
June 2, 1916.)

Headnote

Appeal and Error @=>790(3)—Order Withdrawing Juror—Dismissal.
An appeal from an order directing that a juror be withdrawn, and that the trial entered upon before him be declared a mistrial, will be dismissed, without costs, since the trial of the action was of necessity postponed until it could be moved again for trial, and a reversal would not reinstate it upon its place upon the calendar, or accomplish anything.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 47, 4383, 4384; Dec. Dig. @=>790(3).]
<g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
p. 397
Appeal from Special Term, New York County.
Action by Owen E. Abraham, as assignee for the benefit o-f the creditors of Charles E. Ball and Louis E. Whicher, composing the firm of Ball & Whicher, against the American Exchange National Bank. From an order directing that a juror be withdrawn, and that a trial entered before him be declared a mistrial, plaintiff appeals. Appeal dismissed.
Argued before SCOTT, DOWLING, SMITH, and PAGE, JJ.
Herman Aaron, of New York City, for appellant.
L. Laflin Kellogg, of New York City, for respondent.

This appeal must be dismissed, became a reversal of the order will accomplish nothing. The trial of the action is of necessity postponed until it can be moved again for trial, and a reversal of the order would not reinstate it in the place it then held upon that calendar. The dismissal should be without costs, however. The action is brought to recover moneys claimed to have been paid by the plaintiff’s assignor under fraudulent representations made by the payee. These moneys were deposited in the defendant bank, and the defendant at once had notice of the fact that they were claimed to have been fraudulently acquired by the payee. It is difficult to see how any right of the plaintiff could be defeated by the bank by a paying out of the money after such notice, but without deciding upon the effect of such payment there can be no doubt that if the payment were shown it was competent to prove that such payment was made after indemnity given.

Appeal dismissed, without costs. Order filed. All concur.