
    First National Bank of Union Mills, Resp’t, v. Judson H. Clark, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23,1888.)
    
    Evidence—Competency of—When a question calls fob a conclusion OF LAW.
    One of the cardinal questions in the case was whether, in fact, Sill, the cashier of the plaintiff, cashed the check of S & W. as he cashed other checks on other banks, and took the deposit slip as evidence that the drawer had funds with the drawee, or whether he did, in fact, pay for and take an oral assignment of a claim or cause of action outside of, and behind, the papers which he received at the time. Held, that the question put to said Sill: “What did you discount, the claim or the check? ” was incompetent as calling for a conclusion of law.
    Appeal from a judgment entered on the verdict of a jury, in favor of the plaintiff, and from an order denying defendant’s motion for a new trial.
    
      Rufus Scott, for app’lt; Ansley & Davie, for resp’t.
   Dwight, J.

The principal questions of law arising in this case were passed upon by this court on a former appeal. See 42 Hun, 16 ; 3 N. Y. State Rep., 438, where the facts are stated. It was then held, in substance, that although the deposit slip was not a contract for the payment of money,, it was prima facie evidence of a deposit of money payable-on demand; and, therefore, prima facie evidence of an implied contract to pay the same. That the check on the. defendant’s bank not being drawn on any particular fund did not, of itself, operate as an equitable assignment of the-claim of the drawer against the drawee; and, therefore, neither the check nor the deposit slip, nor both together, constituted a cause of action in favor of the plaintiff against the defendant.

But that if the transaction in which the check was given and the deposit slip was delivered to the plaintiff by Sliney & Whelan, the alleged depositors of the money, was in fact understood and intended by the parties to the transaction to be a transfer and assignment of the claim and demand of Sliney & Whelan against the defendant for the moneys mentioned in the deposit slip, then and in that case the plaintiff took whatever right Sliney & Whelan had to the money in question.

The court also held, at that time, that it was a proper question for the jury whether the note of Knox Bros, was actually discounted by the defendant at the time it was offered to him and left with his cashier, it being agreed that the avails should not be subject to draft until after ten days; or whether the note was simply received for safe keeping, the question of discounting it being reserved until a later day.

The law being thus declared, and the two questions of fact thus defined having been submitted to the jury on the second trial, the verdict must be conclusive for the purposes of this review unless material error has been committed in the reception of evidence or in the submission of the case to the jury.

We think such error was committed in the ruling of the court on the objection of the defendant to the question put to the witness Sill (the plaintiff’s cashier): “What did you discount, the claim or the check ?”

The question called not for a fact but for a conclusion from the facts; it put the witness in the place of the jury; it called upon him to declare the result and effect of the acts and declarations of the parties to the transaction which was the subject of enquiry; it was a question which could be answered only by the verdict. Sliney, Grierson and Sill testified to the details of the transaction; it was for the jury, alone, to declare from that evidence, what the transaction really was; whether in fact Sill cashed the check of Sliney & Whelan as he cashed other checks, on other banks, and took the deposit slip as evidence that the drawer had funds with the drawee, or whether he did in fact pay for and take an oral assignment of a claim or cause of action, outside of and behind the papers which he received at the time. This as we have seen was one of the cardinal questions in the case; and one which no witness could be premitted to decide.

The rule under which such a question is condemned, is one of the most elementary of the rules of evidence: and it would be difficult to conceive a case in which it could have clearer application than in the case in hand.

The objection to this question though general was sufficient; it could not have Been obviated except by the withdrawal of the question.

For this error the judgment must be reversed and a new trial granted.

Order reversed and new trial granted, with costs to abide the event.

Barker P,.Haight and Bradley, JJ , concur.  