
    International Press Clipping Bureau, Inc., Respondent, v. American Trust Company, Defendant-Appellant and Third-Party Plaintiff. Jacques M. Fisher, Third-Party Defendant.
    Supreme Court, Appellate Term, First Department,
    November 23, 1960.
    
      Bigham, Englar, Jones é Houston (John J. McManus of counsel), for appellant. Max Guttman for respondent.
   Per Curiam.

Triable issues are presented as to whether the check in suit was mistakenly certified after the drawer had instructed the defendant bank to stop payment’ánd as to whether the plaintiff payee suffered any damage or changed its position because of this certification. Plaintiff deposited the check in his own bank for collection and defendant returned- it unpaid marked “payment stopped”. The' defendant bank may be absolved of liability to the plaintiff' if- it is shown-that the certification was the result of such mistake and that- the plaintiff has not been damaged (see Freistat v. Industrial Bank of Commerce, 18 Misc 2d 420).

The judgment should be reversed,-with $10. costs, and motion for summary judgment denied. '

Concur — Hofstadter, J. P., Aurelio and Tilzer,' JJ.

Judgment reversed, etc.  