Opinion
March 29, 1949.
Appeal from Supreme Court in the First Judicial Department, RAIMO, J.
Samuel Lawrence Brennglass of counsel ( Theodore Carsons, attorney), for appellant.
David Samuelsohn of counsel ( Frederick Katz and Isidore Sapir with him on the brief; Frederick Katz, attorney), for respondent.
On a motion addressed to its sufficiency, a pleading is entitled to liberality in interpretation. The allegation in plaintiff's complaint to the effect that defendant "wrongfully, and in violation of, and contrary to the stop-payment notice given the defendant by the plaintiff as aforesaid, paid said check from plaintiff's moneys on deposit with it" is broad enough to include a charge that defendant willfully or wantonly paid the check contrary to plaintiff's specific instructions. A triable issue is thus raised as to whether the check was paid by the bank in willful disregard of the stop-payment order. Though the Appellate Term correctly ruled that plaintiff was not entitled to summary judgment in its favor, it should not have directed summary judgment for defendant.
The determination of the Appellate Term insofar as it grants defendant's cross motion for summary judgment should be reversed and the motion denied, with costs to appellant to abide the event.
PECK, P.J., GLENNON, DORE, COHN and CALLAHAN, JJ., concur.
Determination of the Appellate Term, insofar as it grants defendant's cross motion for summary judgment, unanimously reversed and the motion denied, with costs to the appellant to abide the event. Settle order on notice.