Opinion
November 22, 1943.
Present — Carswell, Johnston, Adel, Taylor and Lewis, JJ. [ 180 Misc. 563.]
In an action to recover the sum of $2,450 deposited by the decedent with the defendant bank, defendant appeals from an order which partially granted plaintiffs' motion for summary judgment, and from the judgment entered thereon; while plaintiffs cross appeal from so much of the order as denied their motion for summary judgment in connection with an item of $800 of their claim. Order of the County Court of Suffolk County modified on the law and the facts so as to provide that plaintiffs' motion for summary judgment be granted in its entirety and that plaintiffs have judgment as prayed for in the complaint. As thus modified, the order and judgment are unanimously affirmed, with ten dollars costs and disbursements to respondents-appellants. The answering affidavit sets forth no facts showing that the decedent was insolvent or had perpetrated a fraud in connection with the $800 note that did not become due until a date subsequent to his death. The bank had no right to offset an unmatured debt against the sum due to the decedent as a depositor. ( Gerseta Corp. v. Equitable Trust Co., 241 N.Y. 418, 423.)