
    Sophie R. H. Levy, as Executrix of the Last Will and Testament of Arthur S. Levy, Deceased, Appellant, v. Commercial Trust Company of New York, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1914.)
    Banks — money on deposit in bank at time of death of testator — action by executrix to recover on check drawn to order of estate—.proof of demand for payment.
    Where a testator at the time of his death had on deposit money to his credit in defendant bank, and the facts alleged in a complaint by his executrix to recover on a check drawn to the order of his estate, and signed and indorsed by plaintiff as executrix, are broad enough to admit proof of a proper demand on defendant for payment of the check, it is error to dismiss the complaint on plaintiff’s opening.
    Appeal by the plaintiff from a judgment of the City Court of the city of New York dismissing the complaint, with costs, upon motion of the defendant’s attorney made after the plaintiff’s attorney had opened his case to the jury, but before any evidence was offered.
    Arthur S. Levy, for appellant.
    Campbell & Moore (Henry A merman, of counsel), for respondent.
   Page, J.

The defendant moved to dismiss the complaint upon the pleadings and upon the opening address of the plaintiff’s attorney. The record on appeal does not include the opening address of counsel for the plaintiff. Furthermore, the defendant’s counsel stated to the court upon the argument, “ The only question is the sufficiency of plaintiff’s complaint. We must look at it and exclude all extrinsic matter, and see if it sets forth a cause of action; if not we are entitled to have it dismissed. ’ ’ The court, after hearing the arguments of counsel, granted the motion and dismissed the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. I am of the opinion that this was error. The complaint states facts showing that the plaintiff’s testator had on deposit with the defendant bank at the time of his decease the sum of $793.73, that letters testamentary were duly issued to the plaintiff, that prior to the 18th day of June, 1912, the plaintiff filed with the defendant a certificate of the clerk of the Surrogate’s Court showing that letters testamentary had been duly issued to the plaintiff and had not been revoked, together with a transfer tax waiver from the comptroller of the state of New York. The complaint then states, ‘ VII. That on or about the 18th day of June, 1912, the plaintiff, as executrix, drew a check or order upon the defendant, wherein and whereby she required the defendant to pay to the estate of Arthur S. Levy the sum of $793.73 and the said check being duly signed by the. plaintiff as executrix and duly endorsed by her as such executrix, was duly presented to the defendant for payment and payment thereof demanded, but that the defendant refused and still refuses to pay the same, and no part thereof has been paid.” As shown by the statements made upon the record, the ground upon which the complaint was dismissed was that no proper demand upon the defendant was pleaded. While it is undoubtedly true as a matter of law that the plaintiff did not stand in the ordinary relation of a depositor in the defendant bank and the bank was not compelled to honor her checks as such, nevertheless, assuming the allegations of the complaint to be true, the bank was under a duty to pay to the plaintiff as executrix the sum on deposit in her testator ’s name upon demand by her or her duly authorized agent. The complaint alleges that payment of the said sum was demanded by means of an order requiring payment thereof signed by her, which was duly presented” to the defendant for payment and payment refused. The defendant was certainly entitled to a proper identification of the plaintiff’s signature to the order before honoring it, and, if it was presented by the plaintiff herself or her agent, the defendant could require identification of the plaintiff or of her agent and proof of the authority of such agent to receive it. But the facts pleaded are in my opinion broad enough to admit of proof of a proper demand by the plaintiff and it was error to dismiss the complaint.

The judgment appealed from must, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

Seabury and Bijur, JJ., concur.

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