(dissenting). I dissent and vote to affirm.
The court found, on sufficient evidence, that defendant bank had paid plaintiff’s check after payment had been stopped. The bank offered no evidence of ratification by plaintiff of this payment and there is no such evidence in the record. But the bank objects to the judgment against it on the theory that by making the payment it discharged a debt owing by plaintiff to the payee of the check. This is immaterial. The bank could not, by wrongfully paying the check, compel plaintiff to make an involuntary settlement of its indebtedness. It could not justify its wrongful payment by showing that the payee of the check was justly entitled to the money. If authority for so plain a proposition be needed it is found in American Defense Society v. Sherman Nat. Bank (225 N. Y. 506).
The prevailing opinion speaks of the supposed erroneous exclusion of evidence on the question of performance by the payee of the check of its contract with plaintiff. Such evidence was inadmissible in this action between the bank and its depositor. But in any event the evidence referred to was offered by respondent and its rejection cannot be availed of by appellant in support of its appeal.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.