
    Emilio Napolitano, as Substituted Committee of Angelina Santoro, an Incompetent Person, Appellant-Respondent, v. Manhattan Savings Bank, as Successor of Citizens Savings Bank, et al., Respondents-Appellants.
    First Department,
    June 27, 1945.
    
      
      Edward, E. Bianco of counsel (Joseph A. Bambury with him on the brief), for plaintiff-appellant and respondent.
    
      
      G. DeWitt Rogers for defendant Manhattan Savings Bank, respondent-appellant.
    
      William E. Robinson of counsel (Thomas E. White with him on the brief; attorney), for defendant Fidelity & Deposit Company of Maryland, respondent-appellant.
   Per Curiam.

The trial court was right in finding that plaintiff was entitled to recover one half of the joint accounts kept in defendant Savings Bank. Though this amounted to $6,080.32, the court erroneously deducted therefrom the sum of $2,500 which had been paid to plaintiff by defendant Fidelity & Deposit Company of Maryland on its bond as surety for the original committee. Concededly, the surety company has not been reimbursed for the $2,500 which it paid to plaintiff in discharge of its obligation as surety for the former committee of the incompetent herein who misappropriated the incompetent’s share of the funds in the Savings Bank. The surety company is subrogated to the extent of $2,500 in and to the claim of plaintiff against defendant Savings Bank. The wrongdoer, defendant Bank, is not entitled to have the benefit of the surety company’s $2,500 payment to plaintiff. (Gen. A. F. & L. Assur. Corp. v. Zerbe Const. Co., 269 N. Y. 227, 232; Gusikoff v. Republic Storage Co., 241 App. Div. 889.)

Plaintiff should have been awarded judgment for the full amount of $6,080.32 with interest at the rate of 6% per annum from February 26, 1937. Of this recovery, plaintiff is to pay the surety company the sum of $2,500 with interest, which sum he will receive as trustee for the latter’s benefit.

The judgment should be modified by increasing the amount thereof to $6,080.32, with interest at 6% per annum from February 26, 1937, and as so modified affirmed, with costs to plaintiff against the defendant Manhattan Savings Bank, as successor by consolidation and merger to the Citizens Savings Bank of the City of New York.

The order so far as appealed from should be affirmed.

Martin, P. J., Townlet, Glennon, Cohn and Callahan, JJ., concur.

Judgment unanimously modified by increasing the amount thereof to $6,080.32, with interest at 6% per annum from February 26, 1937, "and as so modified affirmed, with costs to the plaintiff against the defendant Manhattan Savings Bank, as successor by consolidation and merger to the Citizens Savings Bank of the City of New York. Order so far as appealed from affirmed. Settle order on notice.  