Sweeney v. National City Bank

Appeal from an order denying plaintiff’s motion for an order striking out the amended answer of the defendant The National City Bank of Troy, and for judgment in favor of plaintiff and against such defendant in accordance with rule 113 of the Rules of Civil Practice. The action is brought to recover against such bank the sum of $5,347.17, the amount of a check drawn by depositor against his deposit in the bank, which check it is alleged was forged, and thereafter honored and paid by the bank upon the alleged forged indorsement. The answer of the bank interposes defenses which in substance allege that the proceeds of the check were delivered and paid over by the alleged forger to the person to whom the check was payable and that the payee *1023sustained no loss and never made any claim against any one by reason of the payment on account of the alleged forgery. Issues of fact are raised by the pleadings by the opposing affidavits. Order unanimously affirmed, with costs to the respondent. Present — Hill, P. J., Rhodes, McNamee, Crapser and Heffernan, JJ.