Molloner v. State Bank — 59 N.Y. St. Rep. 270

Majority

p. 270

Emma Molloner, Resp’t, v. State Bank, App’lt.

(New York City Court, General Term,

Filed May 18, 1894.)

Headnote

Appeal—Direction of verdict.

Where the defendant makes proper effort and is entitled to go to the jury on disputed facts, a direction in favor of plaintiff and a refusal of defendant’s request to have these questions submitted to the jury constitute reversible error. '

Appeal by defendant from judgment on verdict directed for plaintiff.

Julius J. '<& A. Lyons, for app’lt; S. Feuchtwanger, for resp’t.

The plaintiff’s husband, concededly had full authority to act for her and did actually conduct all the transactions had with defendant, including the making of deposits and the signing of checks, hence his acts and conversations will be described herein as her acts and conversations. The record discloses many nice questions of law which are fully and ably discussed by appellant’s counsel but which it will not be necessary to investigate or discuss here, because this judgment must be reversed for the reason that defendant made proper effort and was entitled • to go to the jury on disputed facts regarding the transaction which is the basis of this action, hence a direction in favor of plaintiff and a refusal of defendant’s request to have these questions submitted "to the jury was reversible error. Plaintiff’s proof shows that on October 9, 1893 she made a deposit of $455.82 with defendant, included in which was a check for $393.17 drawn by Alfred Samuels on the Nineteenth Ward Bank and endorsed by her before so depositing the same, that after making this deposit and the same was credited in her pass book and before leaving the bank, in a conversation bad with the bank’s general bookkeeper and discount clerk, she was informed by him that the bank had just received a letter from Samuels warning it that the check which she had just deposited would not be paid and requesting her to give the batik her own check on it for like amount, to be charged against her account in case this Samuels check, for which she had just been credited, should be returned unpaid, after being sent through the clearing house for collection and that the bank immediately charged her account with this check given by her and made no effort to collect the Saméis check and never returned the

p. 271

same to her. The testimony given on behalf of the defendant by its general bookkeeper and discount clerk is similar to plaintiff’s except as to the disposition made of the Samuels check, and as to this he testifies that Samuels check was returned by him to her the very instant that she gave him her own check for like amount to be and which was immediately charged against her account to offset the credit given her for the Samuels check which had just been returned to her. Now if this testimony of the bookkeeper and discount clerk is true, the plaintiff has no cause of action by reason of that transaction and it is this transaction upon which her cause of action, herein, is founded. The defendant had the right to have the jury pass upon this testimony given on its behalf and this right its counsel asserted at trial by proper effort to be the same submitted to them but which was denied him and to which he excepted, and all of which he impressed upon the record. The judgment is reversed and a new trial granted, with costs to appellant to ¿bide the event.

Ehrlich, 0. J. and McCarthy J., concur