
    Emma Molloner, Respondent, v. The State Bank, Appellant.
    (City Court of New York—General Term,
    May, 1894.)
    In an action against a bank to recover a deposit, the plaintiffs evidence tended to show that she made a deposit, including a check of a third person, indorsed by her ; that after the deposit the general bookkeeper and discount clerk told her that he had a letter from such person to the effect that the check would not be paid and requested her to give her check, to be charged against her account if such check was returned unpaid, and that her check was so charged immediately by the bank, which made no effort to collect the other check and never returned it to her. The defendant’s evidence agreed with the plaintiff’s, except that the clerk testified that he immediately returned said check to the plaintiff. Held, that the defendant had a right to have this issue submitted to the jury, and that it was error to refuse to do so and direct a verdict for the plaintiff.
    Appeal by defendant from judgment on verdict directed for plaintiff.
    
      
      8. FeueJii/uxmger, for respondent.
    
      Julius J. <£s A. Lyons, for appellant.
   Van Wyck, J.

The plaintiff’s husband concededly had full authority to act for her, and did actually conduct all the transactions had with defendant, including the making of deposits and the signing of checks; hence his acts and conversations will be described herein as her acts and conversations.

The record discloses many nice questions of law, which are fully and ably discussed by appellant’s counsel, but which it will not be necessary to investigate or discuss here, because this judgment must be reversed for the reason that defendant made proper effort and was entitled to go to the jury on disputed facts regarding the transaction which is the basis of this action; hence a direction in favor of plaintiff and a refusal of defendant’s request to have these questions submitted to the jury was reversible error. Plaintiff’s proof shows that on October 9, 1893, she made a deposit of $455.82 with defendant, included in which was a check for $393.17, drawn by Alfred Samuels on the ¡Nineteenth Ward Bank and indorsed by her before so depositing the same; that after making this deposit, and the same was credited in her pass book, and before leaving the bank, in a conversation had with the bank’s general bookkeeper and discount clerk, she was informed by him that the bank had just received a letter from Samuels warning it that his check, which she had just deposited, would not be paid, and requesting her to give the bank her own check on it for like amount, to be charged against her account in case this Samuels check, for which she had just been credited, should be returned unpaid after being sent through the clearing house for collection, and that the bank immediately charged her account with this check given by her, and made no effort to collect the Samueis check, and never returned the same to her. The testimony given on behalf of the defendant by its general bookkeper and discount clerk is similar to plaintiff’s except as to the disposition made of the Samuels check, and as to this he testifies that the Samuels check was returned by him to her the very instant that she gave her own check for like amount, to be, and which was immediately charged against her account to offset the credit given her for the Samuels check which had just been returned to her. Now, if this testimony of the bookkeeper and discount Aerk is true, the plaintiff has no cause of action by reason of that transaction, and it is this transaction upon which her cause of action herein is founded. The defendant had the right to have the jury pass upon this testimony given on its behaif. and this right its counsel asserted at trial by proper effort to have the same submitted to them, hut which was denied him. and to which he excepted, and all of which he impressed upon the record.

The judgment is reversed and new trial granted, with costs to appellant to abide the event.

Ehrlich, Ch. J., and McCarthy, J., concur.

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