Opinion
November 23, 1960
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, WILLIAM S. SHEA, J.
Bigham, Englar, Jones Houston ( John J. McManus of counsel), for appellant. Max Guttman for respondent.
Triable issues are presented as to whether the check in suit was mistakenly certified after the drawer had instructed the defendant bank to stop payment and as to whether the plaintiff payee suffered any damage or changed its position because of this certification. Plaintiff deposited the check in his own bank for collection and defendant returned it unpaid marked "payment stopped". The defendant bank may be absolved of liability to the plaintiff if it is shown that the certification was the result of such mistake and that the plaintiff has not been damaged (see Freistat v. Industrial Bank of Commerce, 18 Misc.2d 420).
The judgment should be reversed, with $10 costs, and motion for summary judgment denied.
Concur — HOFSTADTER, J.P., AURELIO and TILZER, JJ.
Judgment reversed, etc.