124 N.Y.S. 214 | N.Y. App. Div. | 1910
This cause comes before us upon plaintiff’s motion for a new trial, a verdict for defendant having been directed at Trial Term, and the exceptions ordered to he heard here in the first instance. Plaintiff sues as assignee of the National Bank of Commerce of St. Louis for the amount of an overdraft claimed to be due from, the defe nd ant bank. The controversy between the parties arose from the following facts. The two banks were business correspondents,
To this defendant made answer: “We held proceeds of draft for §440.57,' drawn- by defendant on H. A. Klyce, and same was sent us by National Bank of Commerce in St. Louis, Mo.” This answer, whether by intention or ignorance, was so drawn as to convey a false impression, without actually misstating any fact. It was not a categorical answer to the question propounded, and did not state the all-important fact then well known to defendant,- that the Bank of Commerce claimed to be ’the owner of the proceeds of the draft. On the contrary it was well calculated to produce the impression that the money received in payment of the draft was the property of the Bartlett Commission Company, and that the Bank of Commerce had no interest therein, but had acted merely as a forwarder. It is not without significance that defendant did not,-as far as appears, send a copy of this answer to the Bank of Commerce. On June seventeenth, before the cause came on for trial, defendant wrote to the Bank of Commerce: “ On May 22, you wrote us concerning the Klyce garnishment that the Supreme Court of U. S. had ruled' on such a, question, and that you had recently had a similar case ..in Tenn. Will you please cite us to the Federal Court ruling, also some reference to the Tenn. Case. This will facilitate matters with us as the case icill come u/p for hearing' here soon.”
“ Dear Sir.— The letter you wrote us for National Bank of Commerce was handed by us to attorney for party attaching here and same was returned' to us, and attorney stated that was still investigating, and we heard nothing further from case till your letter was received. We have asked for standing of the case from Mr. Klyce, the party attaclring, and he said that case was set for trial the 20tli of last month and publication made, but knows "nothing further about case as his attorney had not informed him of any disposition. We judged that National Bank of Commerce'wonld pay no attention to case from their letter to us when we notified them of attachment.”
From the tone of this letter, and in view of the former correspondence, and in ignorance of the form of return made by defendant to the garnishment process, the counsel for the Bank of Commerce assumed that his view of the law liad been acquiesced in and that the case had been dropped. This letter, although it may have been true in the letter, did not state the whole truth and was certainly
. The appellant’s exceptions are, therefore, sustained, the verdict set aside and a new trial granted, with costs to appellant to abide the event.
Ingraham, P. J., McLaughlin and Laughlin, JJ., concurred ; Dowling, J., dissented.
Exceptions sustained and new trial ordered, with costs to appellant to abide event. Settle order on notice.