
    Janet Freistat, Respondent, v. Industrial Bank of Commerce, Appellant.
    Supreme Court, Appellate Term, Second Department,
    October 24, 1958.
    
      John J. Dwyer and Robert Ohnemus for appellant.
    
      Edward Elman for respondent.
   Per Curiam.

It was not disputed that the defendant bank certified the checks through a mistake by one of its tellers. The record discloses, however, that the plaintiff payee of the checks has not been damaged by the certifications, nor has she changed her position in reliance thereon. In the circumstances the defendant is absolved from liability upon the checks (Carnegie Trust Co. v. First Nat. Bank, 213 N. Y. 301; Wachtel v. Rosen, 249 N. Y. 386; Metropolitan Life Ins. Co. v. Bank of United States, 259 N. Y. 365; Baldinger & Kupferman Mfg. Co. v. Manufacturers-Citizens Trust Co., 93 Misc. 94; Smith v. Treuthart, 130 Misc. 394; Smith & McCrorken v. Chatham Phenix Nat. Bank & Trust Co., 239 App. Div. 318; Irving Bank v. Wetherald, 36 N. Y. 335; Howell v. Mills, 53 N. Y. 322).

The judgment should be unanimously reversed upon the law and facts, with $30 costs to the defendant, and complaint dismissed, with appropriate costs in the court below.

Concur — Pette, Hart and Brown, JJ.

Judgment reversed, etc.  