149 N.Y.S. 950 | N.Y. App. Term. | 1914
The plaintiff’s complaint alleged that he was a depositor in defendant’s banking house, and that it was agreed between himself and defendant that defendant should pay out money deposited by plaintiff upon checks drawn by him. It further alleged that on February 14, 1914, the defendant wrongfully withheld from plaintiff the sum of $125, being part of the amount deposited by plaintiff. The answer was a general denial. Upon the trial the plaintiff attempted to prove the amount of his deposits and the amount of his withdrawals; but abandoned such attempt, and upon being shown, by his counsel, a certain check for the sum of $125, which the defendant conceded was deducted from plaintiff’s account, testified that he did not sign such check. This issue was tendered by the plaintiff and he has recovered a judgment. The defendant appeals and concedes that there was a sharp conflict of evidence, but claims there was reversible error committed by the justice’s charge to the jury.
Bijur and Cohalan, JJ., concur.
Judgment reversed, new trial ordered, with costs to appellant to abide event.