
    J. Baranello and Sons, Respondent, v Chase Manhattan Bank, N.A., Appellant.
   — In an action to recover damages for the wrongful setoff of funds by a bank, the defendant appeals from (1) a judgment of the Supreme Court, Nassau Court (Roncallo, J.), entered June 26, 1984, and (2) a resettled judgment of the same court, entered August 27, 1984, which, upon a jury verdict, is in favor of the plaintiff in the principal amount of $1,043,500. (Appellant’s notice of appeal from an order of the same court dated August 23, 1984 is deemed as a premature notice of appeal from the resettled judgment entered August 27, 1984.)

Appeal from the judgment dismissed. The judgment was superseded by the resettled judgment.

Resettled judgment reversed, on the law, judgment vacated, and new trial granted.

One bill of costs is awarded to abide the event of the new trial.

A new trial is required because the trial court failed to instruct the jury that the plaintiff had the burden of proof on the issue of liability (see, Whitlatch v Fidelity & Cas. Co., 149 NY 45). The pivotal issue at trial was whether the parties agreed to convert a demand obligation into an installment loan and an interrogatory was posed to the jury on that issue. The failure to charge the jury as to the plaintiff’s burden of proof with reference to the alleged agreement was thus fatal.

We reject the attack on the sufficiency of the plaintiff’s proof of damages, but under all of the circumstances we conclude that a full retrial of all issues is warranted. Lazer, J. P., Bracken, Brown and Kooper, JJ., concur.  