Opinion
November 21, 1949.
Action to recover alleged balance due upon a savings bank account, which money had been collected by a guardian of plaintiff's estate appointed by the Superior Court of North Carolina in an incompetency proceeding in that State, without procuring ancillary letters in New York State. The money so collected by the foreign guardian had been deposited in a guardianship estate account in a North Carolina bank. The guardian therefrom paid a considerable amount of the money so deposited for and on behalf of the plaintiff through a period of several years; and had therefrom made monthly payments by check to the plaintiff in New York State for upwards of a year. No protest or objection to the collection of such money by the guardian from defendant was made by plaintiff until a few days before the commencement of this action and over two years after such collection by the guardian. Upon motion and cross motion for summary judgment under rule 113 of the Rules of Civil Practice, judgment striking out defendant's answer, and in plaintiff's favor for the amount sued for with interest and costs, has been entered upon an order directing such judgment. On defendant's appeal, judgment reversed on the law and the facts, without costs, and order, insofar as it grants plaintiff's motion, reversed on the law and the facts and the motion denied, without costs. In view of the foregoing decision on defendant's appeal, plaintiff's appeal from a certain portion of the judgment and order is dismissed, without costs. Whether or not the plaintiff, in accepting the checks from the funds in the guardian's hands, had such knowledge as would constitute acquiescence in the collection by the guardian sufficient to establish ratification of that collection by the guardian, is an issue for jury determination ( Ramsay v. Miller, 202 N.Y. 72, 76; Allen v. Corn Exch. Bank, 87 App. Div. 335; Ketcham v. Marsland, 18 Misc. 450, 453; Jourdan v. Long Island R.R. Co., 115 N.Y. 380, 386). In our opinion, this and other issues are raised by the affirmative defenses, including that of payment, which should not be summarily determined upon affidavits ( Brawer v. Mendelson Bros. Factors, 262 N.Y. 53; Piedmont Hotel Co. v. Nettleton Co., 263 N.Y. 25). Nolan, P.J., Johnston, Adel, Sneed and Wenzel, JJ., concur.