
    Third Department,
    January, 1913.
    The First National Bank of Waverly, New York, Respondent, v. Byram L. Winters, Appellant.
    Motion for a reargument. (See 153 App. Div. 933.)
   Per Curiam:

It is urged upon the motion for a reargument that the decision of the court would be a warrant for the defendant to show upon a retrial the publications of the insurance report as a part of his defense. The court has held that those publications were made competent simply by the evidence offered on the part of plaintiff as to the withdrawal of deposits; that the defendant might show these facts in answer to such evidence for the purpose of showing that the withdrawal of deposits may have been caused otherwise than by reason of the libel of the defendant. If such evidence on behalf of plaintiff had not been in the case it is clear that the evidence would not have been competent. The motion for a reargument should be denied. All concurred; Howard, J., not sitting. Motion for reargument denied.

Decision modified so as to read: Order allowing amendment to the complaint affirmed, without costs. Judgment and order denying new trial reversed and new trial granted, with costs to appellant to abide event on the ground that it was error to permit the plaintiff to prove withdrawals of deposits not shown to be those stated in its bill of particulars; and also on the ground that it was error to refuse to admit evidence offered by the defendant of publications of the report of the Insurance Department in reference to irregularities in the administration of the National Protective Legion of Waverly, N. Y. All concurred; Kellogg, J., upon the ground first stated. (See 153 App. Div. 933.)  