
    Samuel S. Toback, Appellant, v. Brooklyn Trust Company, Respondent-Appellant, and Peoples National Bank of Brooklyn, Impleaded, Defendant-Respondent.
   In an action brought to recover the sum of $8,152.78, claimed by plaintiff to have been improperly paid on certain checks by the defendant Brooklyn Trust Company, on the ground that the indorsements of the payee appearing on said cheeks were forged, judgment in favor of defendant Brooklyn Trust Company as against plaintiff and in favor of Peoples National Bank of Brooklyn as against defendant Brooklyn Trust Company reversed upon the law and a new trial granted, costs to abide the event, upon the ground that the trial court erred in denying the motion made by plaintiff’s counsel to dismiss the defenses of negligence and estoppel interposed by the Brooklyn Trust Company and in submitting these defenses to the jury with instructions that, if the jury found that such defenses had been established, the verdict must be for that defendant. Plaintiff’s counsel, having excepted to the denial of the court to dismiss these defenses, was not precluded from raising the question upon appeal because the court charged, at his request, upon the question of negligence. The issue in this case is whether the indorsements made upon the checks in question were forged. This presented a clear question of fact for the jury, and a verdict in favor of that defendant upon this issue would have been amply sustained by the evidence, but, under the charge of the court, it is impossible to say whether the verdict was rendered exclusively on this issue, and so a new trial is necessary. Lazansky, P. J., Young, Davis, Johnston and Adel, JJ., concur.  