130 N.E. 600 | NY | 1921
The plaintiff, a merchant, was a depositor in the defendant's bank. His wife claimed the ownership *427 of one-half of the account. She joined the bank as a defendant in a suit to establish title, and made service of a summons and an unverified complaint. Four checks, aggregating $222.98, were outstanding at the time. A balance of almost twice that amount was to the credit of the account. All four checks when presented were dishonored, without warning to the depositor. They were returned to the holders with a notice that the account was closed. The cashier asserts that his instructions to the bookkeeper were to mark them "account held." That was not the notice given. The depositor protested against this slur upon his credit, and insisted upon payment. The cashier promised, it is said, that payment would be made upon presentation of the checks again. The plaintiff gave notice to the holders accordingly. There is evidence that the checks or some of them were presented a second time, and a second time dishonored. Upon withdrawal of the adverse claim, the plaintiff sued the bank for the injury to his credit. The trial judge ruled that there could be no recovery in excess of nominal damages. The Appellate Division affirmed by a divided court.
We think the plaintiff's damages were to be determined by the jury. The dishonor of the checks was admittedly a wrong (Citizens' Nat. Bank of Davenport v. Importers Traders' Bankof N.Y.,
Liability existing, we cannot say, as a matter of law, *429
that the damages were merely nominal. The plaintiff was a trader. Some injury to credit may, therefore, be inferred (Rolin v.Steward, 14 C.B. 595; Wiley v. Bunker Hill Nat. Bank,
The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.
HISCOCK, Ch. J., HOGAN, POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Judgments reversed, etc.