
    Frank Mann, as Executor, etc., of Gottfried Westernacher, Deceased, Appellant, v. Franklin Trust Company, Respondent.
    Second Department,
    September 23, 1913.
    Bank — renewal of note procured by false representations as to solvency — right of bank to rescind — set-off—trial—request to go to jury after motion for direction of verdict.
    Where a bank renews a note of a depositor, in reliance upon his statement as to his financial condition, which statement is subsequently found to have been false, it may disaffirm and rescind the transaction and cancel the credit given, and, in an action by the depositor’s administratrix to recover a deposit, may plead the note as a set-off.
    Where the court directs a verdict for the defendant despite the request of the plaintiff to go to the jury upon specific questions of fact, after the defendant has joined with the plaintiff in a motion for the direction of a verdict, the verdict not having been actually rendered by the jury upon the direction before the motion to submit the specific questions is made, the judgment must be reversed, even in a ease where it is doubtful whether the jury could have reached any other conclusion.
    Appeal by the plaintiff, Frank Mann, as executor, etc., from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings on the 11th day of November, 1912, upon the verdict of a jury rendered by direction of the court, both sides having moved for the direction of a verdict, and also from an order entered in said clerk’s office on the 2d day of November 1912, denying plaintiff’s motion for a new trial made upon the minutes.
    
      Henry Shoenherr [Isidor Buxbaum with him on the brief], for the appellant.
    
      John Hill Morgan, for the respondent.
   Stapleton, J.:

The judgment from which the plaintiff appeals was entered upon a verdict directed by the court in favor of the defendant.

The plaintiff’s testator was a depositor in the banking institution of the defendant. On May 26, 1911, the defendant discounted the note of the testator for $3,000, due September 25, 1911. On the due day he paid $300 and obtained a renewal, giving a note for $2,700, due January 25, 1912.

The bank required from the testator a written statement, setting forth his financial condition, before it would give him the credit.

There was evidence which would authorize the jury to determine that the statement was false, misleading and fraudulent in material particulars; that the defendant was deceived by the statement, and that the loan was made and extended by the defendant in reliance upon the statement. On May 24; 1911, the testator represented himself to the defendant to be worth $74,493.02. The testator died the 30th day of October, 1911. His estate was insolvent. There was no proof that he suffered any unexpected financial disaster in the meantime. The plaintiff was appointed and qualified as the executor of his last will and testament. At the time of the testator’s death there was a balance of $755.05 on deposit with the defendant to his credit. The plaintiff brought this action to recover that sum. The defendant, having discovered the fraud in the statement aforesaid, elected to disaffirm and rescind the transaction and cancel the credit given. In its answer it alleged, as a defense, the facts herein referred to, and demanded that the note be set off as against the deposit to the amount thereof.

That the relief invoked by the defendant may be given if the facts pleaded by it were proved is well established. (Bradley v. Seaboard Nat. Bank, 167 N. Y. 427; Andrews v. Artisans’ Bank, 26 id. 298; Flatow v. Jefferson Bank, 135 App. Div. 24; Peyman v. Bowery Bank, 14 id. 432.)

The judgment must be reversed, however, because the court directed a verdict for the defendant despite the request of the plaintiff to go to the jury upon specific questions of fact, after the defendant had joined with the plaintiff in a motion for the direction of a verdict, the verdict not having actually been rendered by the jury upon the direction before the motion to submit the specific questions was made. The courts, in solicitous recognition of the jury’s province as ultimate arbiter of the facts, have too firmly and consistently countenanced this practice to permit an abrogation of the rule, even in a case where it is doubtful if the jury could have reached any other conclusion. (Second Nat. Bank v. Weston, 161 N. Y. 520; Cullinan v. Furthmann, 70 App. Div. 110, 111; Eldredge v. Mathews, 93 id. 356, 357; Maxwell v. Martin, 130 id. 80, 83.) There are in the case questions which the jury alone could determine in the first instance unless the right to determine them was committed to the court by the joint and irrevocable action of the parties to the litigation. The action of the parties in jointly moving for the direction of a verdict does not reach the irrevocable stage until the verdict is actually pronounced by the jury.

The judgment and order should be .reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Thomas, Carr and Putnam, JJ., concurred.

Judgment and order of the County Court of Kings county reversed and new trial ordered, costs to abide the event.  