Opinion
May 29, 1930.
Appeal from Supreme Court of New York County.
Colley E. Williams of counsel [ Allan C. Rowe, attorney], for the appellant.
Max E. Greenberg of counsel [ Meyer Greenberg, attorney], for the respondent.
Present — DOWLING, P.J., MERRELL, FINCH, McAVOY and SHERMAN, JJ.
The judgment in favor of plaintiff can be sustained only upon adequate proof that plaintiff's loss was occasioned by the dishonest acts of plaintiff's teller. That charge has not been established by the fair weight of the evidence, which is consistent with the conclusion that he was only careless and unintelligent. Moreover, there are unexplained circumstances in the record relating to the alleged payment by the teller of large sums in cash on September twenty-first and twenty-second, particularly Exhibit 32 upon which it is said that $4,500 was paid on September twenty-second, though the check itself is dated September twenty-third and its written out amount is $45 while the numerals are $4,500.
The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.