
    Morris Grossman, Respondent, v. Lafayette Trust Company and Clark Williams, as Superintendent of Banks of the State of New York, Appellants.
    Second Department,
    July 27, 1911.
    Banks — right of depositor to recover amount of notes charged against him — account stated.
    Where a depositor in a bank had been credited on his pass book with the proceeds of promissory notes, payable to his order and indorsed by him, and the notes not being paid at maturity, no notice of protest was given him, but the amount of the notes was charged against him, which fact he first learned on delivering his pass book to be written up after the bank had been taken possession of by the State Superintendent of Banks, he is entitled to recover the amount of the notes.
    Under such circumstances, there was no account stated, nor did the fact that the depositor received a dividend upon the balance of deposits admitted to be due amount to an acquiescence as to the correctness of that balance.
    Appeal by the defendants, the Lafayette Trust Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of June, 1910, upon the verdict of a jury rendered by'direction of the court, and also from an order entered in said clerk’s office on the 23d day of July, 1910, denying the defendants’ motion for a new trial made upon the minutes.
    
      Roswell S. Nichols, for the appellants.
    
      Herman S. Bachrach, for the respondent.
   Hirschberg, J.:

The plaintiff was a depositor in the Jenkins Trust Corn afterwards named the Lafayette Trust Company, a corn engaged in the conduct of the banking business under the laws of .this State. • The institution was taken possession of by the Superintendent of Banks of this State and was in his possession at the time of the commencement of this action, for the purpose of liquidation, by virtue of chapter 143 of the Laws of 1908. As a depositor the plaintiff had been credited on his pass book with the proceeds of two promissory notes, payable to his order and indorsed by him in the sum of $885,45. The notes were not paid at maturity, but no notice of protest, was ever given to the plaintiff, if the notes were protested at all; The plaintiff ' first learned of the fact that the notes were charged off his account at the bank when he delivered his pass book up to the institution to be written up after its seizure by the Superintendent. Then .the' amount of the ‘notes Was deducted from the balance due him and the book returned to him,, showing a balance only of $154.15. ..He thereupon presented. two claims to the Superintendent,, one for the conceded balance and one for the amount of the notes. The claims were presented in that form under the direction of the Superintendent, or some one belonging to his office. The claim for the conceded balance was admitted and the other one rejected, whereupon the present action Was brought.

I find no defense to the plaintiff’s' cause of action. The only point made by the appellants is that the delivery of the pass book in the circumstances amounts to the taking and stating of an account between the parties. The fallacy of the claim is so obvious that it needs no discussion. It is true the plaintiff has received a dividend based upon the amount of his conceded claim, $154; 15, but such receipt is no acquiescence in law to the correctness of the balance. It was the acceptance of a sum to which both parties knew he was entitled and which was paid and received with full knowledge of the fact that á disputed claim, which was in litigation at the time, existed.

The equities are clearly in the respondent’s favor and the judgment and order should be affirmed.

Jenks, P. J., Burr, Thomas and Bioh, JJ., concurred.

gment and order affirmed, with costs.  