44 A.D.2d 648 | N.Y. App. Div. | 1974
Order unanimously modified in accordance with memorandum and as modified affirmed, without costs. Memorandum: Plaintiffs and defendant Aleszczyk are residuary legatees under a last will and testament of Michalina Zmitrowicz, also known as Balabka (deceased), who died on March '6, 1970. Aleszczyk is also executor and filed an intermediate account in Oneida County Surrogate’s Court on July 12, 1972. On October 31, 1972 plaintiff Renzi filed objections to the account, claiming that the individual defendant should be required to pay into the estate the sums of $54,660.29 and $9,239.22. While the accounting proceeding was still pending, plaintiffs commenced the present action against both Aleszczyk and the bank. The first three causes of action are solely against Aleszczyk in his individual capacity and not in his representative capacity as executor. Bach seeks the same relief as the objections in the accounting proceeding except for an additional demand for $10,000 punitive damages. The fourth cause of action is solely against the defendant bank. Plaintiffs allege that the bank owed a duty to its customers to use due care in transferring funds out of their accounts and that it breached this duty by paying out funds from two of deceased’s accounts, prior to her death, to Aleszczyk upon his presentation of two powers of attorney executed by deceased with an “ X ”. Plaintiffs allege that the bank should have inquired into the deceased’s capacity and into the authority of the individual defendant because deceased did not sign the powers of attorney with her autograph sig