APPEAL by the defendant, Richard K. Haldane, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of March, 1911, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.
Edward M. Bliven [James Moffett with him on the brief], for the appellant.
John Thomas Smith, for the respondent.
The complaint alleges the various steps by which the plaintiff, the Lafayette Trust Company, came into existence and succeeded to the rights, duties and obligations of the Jenkins Trust Company; that the defendant made his promissory note for $5,000, payable in six months from the 10th day of July, 1907, and negotiated the same with the plaintiff; that the note was duly protested for non-payment at maturity, the defendant having notice thereof; that the protest fees amounted to $1.11; that at the maturity of said note interest had accrued to the amount of $153.33, making the total indebtedness $5,154.44; that at the date of maturity the defendant, who had been a depositor with the plaintiff's predecessors, had the sum of $731.19 on deposit; that this sum was applied upon the said indebtedness, leaving the balance due and unpaid $4,423.25, and that no part thereof has been paid. The proper judgment is demanded.
The defendant, answering, denies knowledge or information as to the first paragraph of the complaint in reference to the organization of the plaintiff's predecessors and the steps taken to transfer the rights, duties and obligations of such predecessors to the plaintiff, but upon the trial these facts were admitted. A denial in reference to the protest fees is also made, but this was not insisted upon. The defendant then admits that
he was a depositor of the plaintiff, but denies that he had on deposit with plaintiff the sum of $731.19 only, which is clearly not a denial of the allegation of the complaint that the defendant did have that sum on deposit, and it does not raise any issue whatever. Upon the pleadings as finally completed by admissions, the plaintiff was fairly entitled to judgment for the amount claimed, and the only questions presented by this appeal relate to the rulings of the learned court upon the admission of evidence upon the defendant's first counterclaim, all of the others being allowed by the court, which was placed in a position to pass upon the facts and the law by the motions of both parties for the direction of a verdict.
The first counterclaim alleges that prior to the 5th day of July, 1905, the defendant was a depositor of the Coney Island and Bath Beach Bank; that he continued as such depositor down to the said fifth day of July, when the said bank was taken over by the Jenkins Trust Company; that the deposit account of the defendant was taken over by the Jenkins Trust Company and continued down to the time that the said Jenkins Trust Company ceased doing a banking business and suspended payments on the 25th day of October, 1907; that the defendant deposited in these institutions 'divers, numerous, large and small sums of money from time to time, and drew checks for divers, numerous, large and small sums of money against said deposit account from time to time, until the said Jenkins Trust Company ceased to do a banking business on October 25th, 1907, as aforesaid, and that the said Coney Island and Bath Beach Bank and the said Jenkins Trust Company and the plaintiff herein, and neither of them, have ever balanced said account or accounted to this defendant for said deposit account, and have never returned to or delivered to this defendant, a statement of his account, or delivered to him his checks and vouchers for the sums of money withdrawn by him from said account or from said Bank or Trust Company, or paid out by either said Bank or Trust Company on account of said defendant's deposit account,' and that since the Jenkins Trust Company became the Lafayette Trust Company, the defendant has frequently demanded such an accounting, and that 'its officers, and agents, have neglected and refused to
account to this defendant for the amount of moneys deposited by him, and the amount of moneys withdrawn by him therefrom, so as to enable this defendant to determine the exact amount due from the said Trust Company to him, and there is now, and has been, ever since the date of the note described in the complaint herein large sums of money due to this defendant from the said plaintiff, for which the defendant is entitled to judgment.' The defendant then alleges that all of the vouchers, etc., as well as all of the accounts, are in the possession of the plaintiff, no pass book being issued to him, and demands judgment that 'it be ascertained what the balance due from the plaintiff to the defendant on his deposit account, as alleged in the first counterclaim is, and that the same be applied in liquidation of any claim or verdict that may be obtained in this action against him by the plaintiff, and that he have judgment against the plaintiff for the excess over the amount found due from the defendant to the plaintiff.' The plaintiff replied to this counterclaim, admitting the connection between the various corporations, and denying all of the other material allegations.
In support of this counterclaim, the defendant took the stand in his own behalf, and answered questions in relation to the affairs of the banks and trust companies, stating that no account was ever rendered to him and that none of his checks were ever returned, and then he was asked: 'How much money did you deposit in the Coney Island and Bath Beach Bank and the Jenkins Trust Company up to the time that the Jenkins Trust Company ceased doing business on October 27, 1907?' To this the witness answered, 'About $22,000.' On motion of plaintiff's counsel this answer was struck out on the ground that it was not responsive to the question, and defendant took an exception. Then the question was asked, 'During the period that you deposited money in the Coney Island and Bath Beach Bank, what did the deposits consist of? What amounts, and when were they made?' To this plaintiff's counsel ...