(dissenting). I concur with Mr. Justice Churchill as to the failure of the defendant to set up or prove a proper counterclaim which could be offset against plaintiff’s claim on the promissory note which Was honored by the former in violation of instructions, and I am pleased to note that my brother adopted the reasoning advanced in my original memorandum wherein I urged the American Defense Society case. But I cannot accept his conclusion that the charge by the court below and the admission of certain evidence constituted error.
*33The resolution of October 7, 1924, was notice to the defendant bank that the funds of the plaintiff were to be withdrawn only upon the signature of Joseph Gold as secretary and treasurer. This notice in so far as checks were concerned, undoubtedly bound the bank not to pay any which Were presented, except such as were properly signed by the officers designated to the bank as authorized to sign the same. (Shoe Lasting Machine Co. v. Western Nat. Bank, 70 App. Div. 588.) The instrument in suit was a note executed by the former officers of the plaintiff and made payable at the defendant bank. Such a note is in effect like a check, an order or draft on the banker in favor of the holder for the amount, and like a check too, may be countermanded or payment thereon ordered stopped. (Ætna National Bank v. Fourth National Bank, 46 N. Y. 82.)
Specific notice countermanding this very note Was unnecessary, because the bank had knowledge of the change of officers of the plaintiff, and in paying the note it did so at its peril. It is perfectly true' that no such notice could affect the right of the bank to repay to itself out of the funds of the depositor the value of any note which it had discounted, and for the amount of which the depositor was indebted. But the note in suit was not of this character, it being evidence of the claim of a third party.
Upon the record, as I read it, there Was really nothing to present to the jury and I consider that the direction of a verdict in plaintiff’s favor would have been entirely proper. I, therefore, dissent and vote to reverse the order and to reinstate the verdict of the jury.