| N.Y. App. Div. | Mar 3, 1920
No connection appears between the Baskt transaction of April 12, 1919, and the amount of the deposit which plaintiff had May 8, 1919, in the defendant bank. There is nothing to indicate that the plaintiff relies on the Baskt transaction to make good his claim that his check of May eighth should have been paid by the bank. It may be that on the trial the Baskt transaction will become relevant. If so the facts can be
The defendant urges that the defenses are immune from the attack of the demurrer by reason of an allegation in each defense independently of the allegations concerning the Baskt transaction to the effect that “ at the time the check mentioned in the complaint was presented for payment the plaintiff had to his credit but the sum of $6.14.” That is true as to the third defense. Although the defendant could prove this fact under the denial of its amended answer it is not [thereby precluded from also pleading it as a defense. (Morgan Munitions Co. v. Studebaker Corporation, 226 N.Y. 94" court="NY" date_filed="1919-03-21" href="https://app.midpage.ai/document/morgan-munitions-supply-co-v-studebaker-corporation-of-america-3610523?utm_source=webapp" opinion_id="3610523">226 N. Y. 94; Staten Island Midland R. R. Co. v. Hinchliffe, 170 id. 473.) But as to the first and second defenses the allegation is different. It is that when the check mentioned in the complaint was presented for payment the plaintiff had to his credit upon the books of the bank but the sum of six dollars and fourteen cents. The point is not what might appear from the books of the bank but what the bank owed the plaintiff. These allegations in the first and second defenses are insufficient to create an issue.
The interlocutory judgment should be modified by overruling the demurrer to the third defense and striking out the costs and, as so modified, affirmed, without costs, and with leave to the defendant to serve an amended answer within twenty days.
All concur.
Interlocutory judgment modified by overruling the demurrer to the third defense and striking out the costs and, as so modified, unanimously affirmed, without costs, with leave to the defendant to serve an amended answer within twenty days.