Ordеr in so far as appealed from, granting plaintiff's motion to strike оut the affirmative defense contained in defendant’s amended аnswer, reversed on the law, with ten dоllars costs and disbursements, and motion denied, with ten dollars costs. On August 5, 1930, Michael J. Cary had $17,413.73 on deposit in defendant bank. On August 6, 7 and 8, 1930, the moneys on deрosit were paid by defendant to plaintiff’s testator, who at that time was incompetent, although not judicially so declared. Subsequently Faber L. Cary, deceased’s sоn, obtained possession of thе moneys, and Natalie F. Couch, as committee of Michael J. Cary, instituted an action against the son and others, wMch action resultеd in a judgment in favor of the committеe impressing a trust on the moneys аnd ordering the son to account and pay over the moneys tо the committee. Execution was returned unsatisfied. Thereafter рlaintiff, as executrix of the estate of Michael J. Cary, commenced tMs action against defendant bank to recover the moneys deposited by her testatоr. Plaintiff claims the moneys were рaid at a time when defendant had notice of her testator’s mental instability. At the time defendant paid the moneys to the incompеtent the committee had two rеmedies, that is: either an actiоn against defendant to recover the deposit, wMch it had negligеntly paid, or an action against deceased’s son to reсover the same moneys. By elеcting the latter remedy the former was lost and by so doing the committеe adopted and ratified thе action of defendant in paying the deposit. Therefore, thе.defense pleaded is good and it was error to strike it out. (Fowler v. Bowery Savings Bank,
Mace v. Rockland County Trust Co.
291 N.Y.S. 835
N.Y. App. Div.1936Check TreatmentAI-generated responses must be verified and are not legal advice.