Opinion
April 11, 1960
Present — Nolan, P.J., Beldock, Ughetta, Christ and Brennan, JJ.
In an action to recover the sum of $2,800 paid by defendant on two forged withdrawal orders on an account in the name of "Shirley Bloom in trust for son Stuart Bloom", plaintiff, individually and as guardian ad litem for Stuart Bloom, an infant, appeals, by permission of the Appellate Term, from a resettled order of that court which (1) reversed a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, in favor of the plaintiff and dismissed the complaint, with costs; (2) dismissed the appeal from the decision; and (3) deemed the title of the action "amended so as to substitute Shirley Bloom, Plaintiff, in the place of Shirley Bloom, Guardian ad Litem for Stuart Bloom, an infant." Resettled order unanimously affirmed, with costs. We agree with the Appellate Term that there was no showing that the defendant failed to use the due care and diligence required of it in paying out the moneys in suit. (Cf. Appleby v. Erie County Sav. Bank, 62 N.Y. 12; Campbell v. Schenectady Sav. Bank, 114 App. Div. 337; Noah v. Bank for Sav., 171 App. Div. 191; Geitelsohn v. Citizens' Sav. Bank, 17 Misc. 574.) We do not reach the question whether the proper party plaintiff was Shirley Bloom individually, or as guardian ad litem of the infant to whom, the trial court found, the moneys on deposit belonged, as the complaint was properly dismissed in any event and any liability of Shirley Bloom for costs would be the same (cf. N.Y. City Mun. Ct. Code, § 26).