Lifschutz v. Public Bank

159 N.Y.S. 879

Opinion

PFR CURIAM.

[1] Plaintiff is suing defendant for failure to pay out the balance of his account. The entire controversy involved the question whether plaintiff had made a certain deposit of $100.

After plaintiff rested, defendant moved to dismiss on the ground that no demand had been proved, although that fact was alleged and denied respectively. In the absence of such proof, it would, of course, be unjust to hold the defendant for the costs of the action. Wasserstrom v. Public Bank, 123 N. Y. Supp. 55.

[2] In the first place, however, the course of plaintiffs proof sufficiently shows that a refusal on the part of the bank was taken for granted; but, apart from that, the colloquy which succeeded defendant’s motion indicates that the objection was waived. Plaintiff’s counsel said:

“II my friend wants to be so technical, I will ask point-blank, ‘Do you want to pay out that §100?’ ”

And the court, inter alla, addressing defendant’s counsel, said:

“You don’t contend that you gave credit on that hundred dollars, do you, on your bank balance?”

■To which defendant’s counsel answered:

“No, there is nothing to show on the books of the bank that we gave him credit.”

Finally, after the denial of the defendant’s motion, defendant entered upon its proofs, covering over 20 pages of the record, from which it appears that plaintiff repeatedly made a claim for the hundred dollars, and that it was refused.

[3] Whether, therefore, we regard the pleadings as amended, to conform to the proof on the admission of defendant’s counsel, to allege that a demand was excused or rendered unnecessary by defendant’s denial of liability (Delahunty v. Central Natl. Bank, 37 App. Div. 434, 56 N. Y. Supp. 39, and many other cases to the same effect), or whether we treat the record as showing that plaintiff’s defect of proof was supplied in defendant’s case, the judgment is correct .and should be affirmed.

Judgment affirmed, with $25 costs.