Although the evidence sustains the finding that the defendant bank paid a check of the depositor after it had been notified to stop payment thereof, it also establishes that the check was given in consideration of an agreement involving the release of a mortgage upon plaintiff’s property and that the release was received and recorded by plaintiff.
Defendant contends the retention of this release amounts to a ratification of payment. (See American Defense Society v. Sherman Nat. Bank, 225 N. Y. 506.) However, the release was received and recorded long before payment of the check and plaintiff asserts that there were other promises made by payee in consideration of which the check was given. Defendant can only establish ratification by showing that the plaintiff having received full consideration *661for the check retained the benefits thereof after knowledge of payment by the bank. The issue, therefore, as to whether there were other promises involved and whether there had been performance by the payee with regard thereto was ah important one.
The court below improperly excluded proof material to this issue, which error requires reversal and a new trial."
A like rule would apply if defendant could be said to have the right to recover on its counterclaim.
The judgment should be reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.
Callahan and Shientag, JJ., concur; Lydon, J., dissents, with opinion.