Dousmanis v. Colonial Bank

Peters, J. (dissenting).

The complaint alleges that plaintiff was a depositor in the defendant bank; that on August 31, 1928, there remained on deposit an undrawn balance of fifty dollars; that on September 1, 1928, plaintiff demanded payment but defendant refused; that on or about July 25, 1928, plaintiff made, executed and delivered his check drawn upon defendant, payable to the New York Carbonate Company in the sum of fifty dollars, which check plaintiff dated September 1, 1928; that on or about August 2, 1928, defendant negligently paid this check; that payment by defendant of the check to…