Opinion
November, 1934.
Judgment dismissing complaint in an action to recover the amount of an uncertified check paid by defendant after having received a notice to stop payment thereon, and for damages resulting therefrom, reversed on the law and a new trial granted, costs to appellant to abide the event. In our opinion, the trial court erred in directing a verdict for the defendant upon the ground that, because defendant knew that the money represented by the check in question belonged to the payee and had entered the amount thereof on his pass book, it could not stop payment without incurring liability to the payee. The defendant was not at liberty, as against plaintiff, to determine any such question. The only question in this case is whether the defendant waived the regulation contained in the pass book in question and the provisions of section 350-b of the Negotiable Instruments Law concerning the provisional character of the deposit. The record on this appeal discloses no evidence of such waiver. The check was not paid to the payee in cash, nor certified, nor credited to the payee on the defendant's books at the time the stop order was given. Lazansky, P.J., Young, Carswell, Scudder and Tompkins, JJ., concur.