Cohen v. Public National Bank , 123 Misc. 163 ( 1924 )

Crain, J.

The plaintiff was a depositor in defendant bank. On September 17, 1923, he drew a check on his account payable to the order of one Max Frankel for $810. He dated the check September nineteenth. The complaint alleged that Frankel or some one on his behalf altered the date to the eighteenth and that this alteration was visible on inspection. On the eighteenth Frankel presented the cheek to the defendant for payment and payment was refused, the paying teller of the defendant placing his initials on the check. Frankel afterwards transferred the check to one Finkelstein, who, on September twenty-second, presented it again to the defendant and obtained payment on it. The answer admits that the date of the check was altered, admits that when the check was first presented payment was refused; it denies, however, knowledge or information sufficient to form a belief as to whether Mr. Frankel or some one in his behalf altered the date and denies that the alteration was visible on inspection. Defendant also denied that it had knowledge of illegality either in the inception of the instrument or in any subsequent period of its history or of any informality in the check. Summary judgment was granted in favor of plaintiff for the amount sued for, being the amount of such check. This was improper. Plaintiff’s cause of action depended upon two allegations, namely, first, that some one other than plaintiff made the alteration, and second, that the alteration was visible on inspection. These allegations were put in issue. They could not be disposed of on motion if defendant’s denials putting these allegations in issue were made in good faith. The good faith of the defendant was made to appear by the affidavits of Harry Weiss and Victor Sternberg, defendant’s tellers, and the affidavit of Joseph J. Bach, one of its vice-presidents. .

Judgment and order reversed, with costs, and motion denied.

Bijtjr and McCook, JJ., concur.

Judgment reversed.