Memorandum. Judgment unanimously reversed, with $10 costs, and judgment directed for plaintiff in the sum of $225, with appropriate costs and disbursements in the court below.
Plaintiff brought this action to recover the amount prematurely paid by defendant bank on a postdated check drawn on it and issued by plaintiff depositor. Prior to the date of the check, plaintiff requested defendant to stop payment of same and was informed that the check had already been paid. Plaintiff established, upon the trial, that he sustained damages as a result of said payment. The defendant bank failed to prove by any competent evidence that plaintiff had assented to the bank’s regulation limiting its liability (see Gaita v Windsor Bank, 251 NY 152). Accordingly, the plaintiff is entitled to the relief prayed for (see Montano v Springfield Gardens Nat. Bank, 207 Misc 840; 5 [now 5A] NY Jur, Banks and Trust Companies, § 342 [now § 373]).
Present: Hogan, P. J., Pittoni and Farley, JJ.