
    Max S. Levine, Respondent, v. Abraham L. Kass, Appellant.
    (Supreme Court, Appellate Term, First Department,
    November, 1914.)
    Negotiable instruments — payment of money deposited in defendant’s bank — abandonment of attempt to prove amount — bills, notes and checks — proof of amount of withdrawals — banks — evidence.
    Where the complaint of a depositor in defendant’s bank alleged that it was agreed between plaintiff and defendant that defendant should pay out money deposited by plaintiff upon his cheeks and that defendant wrongfully withheld from plaintiff a part of the money so deposited, and the answer is a general denial, and plaintiff, abandoning an attempt to prove the amount of his withdrawals and upon being shown a certain check the amount of which defendant conceded was deducted from plaintiff’s account, testified that he did not sign such check, a charge to the jury, duly excepted to, that the burden of proof was on defendant to show that the check bore the genuine signature of plaintiff is reversible error for which a judgment in favor of plaintiff will be reversed and a new trial granted.
    Appeal by the defendant from a judgment rendered in favor of the plaintiff after a trial by a jury in the Municipal Court of the city of New York, borough of Manhattan, second district, and from an order denying a motion for a new trial.
    Feltenstein & Rosenstein (Moses Feltenstein, of counsel), for appellant.
    Jacob W. Block, for respondent.
   Seabury, J.

The plaintiff’s complaint alleged that he was a depositor in defendant’s banking house, and that it was agreed between himself and defendant that defendant should pay out money deposited by plaintiff upon checks drawn by him. It further alleged that on February 14, 1914, the defendant wrongfully withheld from plaintiff the sum of $125, being part of the amount deposited by plaintiff. The answer was a general denial. Upon the trial the plaintiff attempted to prove the amount of his deposits and the amount of his withdrawals; but abandoned such attempt, and upon being shown, by his counsel, a certain check for the sum of $125, which the defendant conceded was deducted from plaintiff’s account, testified that he did not sign such check. This issue was tendered by the plaintiff and he has recovered a judgment. The defendant appeals and concedes that there was a sharp conflict of evidence, but claims there was reversible error committed by the justice’s charge to the jury. It will be observed that the plaintiff first set out to prove the amount of his deposits and the amount of the checks issued against them, thus leaving upon the defendant the onus of proving payments of the entire amount of the deposits. Had the plaintiff not abandoned this method, the burden of showing payment would, undoubtedly, have rested upon the defendant. The plaintiff’s counsel, however, stated, “ Well, we will consider only this check here,” and then showed by the plaintiff that the signature thereon was not genuine. If the testimony that the check was a forged one be eliminated from the record, there would be no cause of action proven against the defendant, as there is no proof that the plaintiff had a balance remaining. Quite regardless of the rules of evidence that might apply to an action involving the facts disclosed in this case, the parties may formulate the issues in a manner agreeable to themselves and thus by this procedure the plaintiff assumed the burden of proving that the check was forged. The court charged that the burden of proving that the check bore the genuine signature of the plaintiff was upon the defendant, and to this portion of the charge the defendant duly excepted, the court then saying, “ Yes, I so charged, and you may have an exception on the record.” This was error and, in a case so closely contested as this, may have materially affected the finding of the jury.

Bijur and Cohalan, JJ., concur.

Judgment reversed, new trial ordered, with costs to appellant to abide event.  