Walnut Hill Bank v. National Reserve Bank

Appellate Division of the Supreme Court of New York

Walnut Hill Bank v. National Reserve Bank

154 A.D. 467, 139 N.Y.S. 117, 1913 N.Y. App. Div. LEXIS 9021

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 3, 1913

StatusPublished

This text of 154 A.D. 467 (Walnut Hill Bank v. National Reserve Bank) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Walnut Hill Bank v. National Reserve Bank, 154 A.D. 467, 139 N.Y.S. 117, 1913 N.Y. App. Div. LEXIS 9021 (N.Y. Ct. App. 1913).

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Opinion

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 [468]*468former 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 Hational Beserve 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.

Present — Ingraham, P. J., McLaughlin, Laughlin, Miller and Dowling, JJ.; Miller, J., dissented.

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

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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 [468]*468former 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 Hational Beserve 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.

Present — Ingraham, P. J., McLaughlin, Laughlin, Miller and Dowling, JJ.; Miller, J., dissented.

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

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Bluebook (online)

154 A.D. 467, 139 N.Y.S. 117, 1913 N.Y. App. Div. LEXIS 9021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walnut-hill-bank-v-national-reserve-bank-nyappdiv-1913.

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