Walnut Hill Bank v. National Reserve Bank

Full title: WALNUT HILL BANK, Respondent, v . THE NATIONAL RESERVE BANK OF THE CITY OF…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 3, 1913

154 App. Div. 467 (N.Y. App. Div. 1913)

139 N.Y.S. 117

Opinion

January 3, 1913.

John K. Byard, for the appellant.

C.H. Payne, for the respondent.

Present — INGRAHAM, P.J., McLAUGHLIN, LAUGHLIN, MILLER and DOWLING, JJ.: MILLER, J., dissented.

PER CURIAM:

This action was brought in the City Court and there have been two trials. Upon the first trial plaintiff had a judgment, which was affirmed by the Appellate Term, and its determination reversed by this court and a new trial ordered ( 141 App. Div. 475). The second trial also resulted in a judgment in favor of the plaintiff, which was affirmed by the Appellate Term (76 Misc Rep. 220), and the defendant appeals from that determination.

The facts are fully set forth in the opinion delivered on the former appeal, so that it is unnecessary to restate them. It was there said that "the notice sent by defendant to plaintiff that it had recovered the draft for the latter's credit, was undoubtedly enough to lay the foundation for an estoppel if it appeared that plaintiff, in reliance upon such notification, had done anything, or refrained from doing anything, to its damage."

On the second trial proof was offered for the purpose of showing that the defendant was estopped from asserting that the draft had not, in fact, been credited to the plaintiff. The testimony of plaintiff's cashier was taken by commission, and he testified in answer to a question whether the plaintiff refrained from doing anything with respect to the indebtedness of the Merchants and Farmers' Bank, in consequence of the receipt of the postal card from the defendant to the effect that the draft had been received for its credit, that "But for the receipt of the card from the defendant, the plaintiff would have made a strong effort to collect the $1000, now in litigation with the National Reserve Bank from the Merchants Farmers Bank." It is claimed that this additional proof brings the case within our former decision entitling the plaintiff to recover. This would be so if the plaintiff had proved, in addition, that it sustained damage by reason of its not making the "effort to collect." It was bound to prove that it not only did not do anything but if it had the debt or some part of it could have been collected.

The determination of the Appellate Term is, therefore, reversed, and a new trial ordered, with costs to appellant to abide event.

PER CURIAM:

Determination reversed and new trial ordered, costs to appellant to abide event.