201 A.D. 309 | N.Y. App. Div. | 1922
The plaintiff had a deposit account with the defendant, and on the 5th of October, 1921, defendant paid and charged thereto a trade acceptance or draft, payable that day, for $17,000, drawn by the Reilly-Peabody Fuel Company of Pittsburgh, Penn., on or about the 5th of July, 1921, on plaintiff, and duly accepted by it, payable at the bank of the defendant. The plaintiff, claiming to have notified the defendant not to pay the draft, brought this action to recover the balance of its account as the same would have been if that item had not been charged thereto. The defendant pleaded as a counterclaim the acceptance by the plaintiff of the
I am also of opinion that the verbal notice was insufficient, for the reason that the bill of particulars, which may be considered on such a motion (Dineen v. May, 149 App. Div. 469, 471), shows that it was not given, as pleaded, prior to the fifth of October, but on that day, which was the day on which the draft was payable and was paid, and it neither appears by the reply nor by the bill of particulars, which, however, would not have sufficed (Wells v. Caro, 74 Misc. Rep. 87), that the verbal notice was given prior to the payment of the draft or a sufficient time prior thereto to have enabled the defendant in the exercise of reasonable diligence to stop payment of the draft. The defendant’s motion for judgment on the pleadings, therefore, should have been granted, but the plaintiff should have been afforded an opportunity, if so advised, to amend its reply by pleading that the notice countermanding the payment of the draft was given to the defendant a sufficient time prior to its payment of the draft to have enabled it in the exercise of reasonable diligence to stop payment thereof.
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, unless within twenty days the plaintiff shall pay the costs and obtain leave to serve, and shall serve, an amended reply alleging that the notice to stop payment was given a sufficient length of time before defendant paid the draft to have enabled it in the exercise of reasonable diligence to stop payment thereof, and in that event the motion will be deemed denied, without costs.
Clarke, P. J., Dowling, Page and Merrell, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, unless plaintiff complies with conditions stated in opinion, and in that event the motion will be deemed denied, without costs.