Opinion
November 21, 1949.
Action to recover from appellant savings bank the full amount to the credit of respondent's account in that bank prior to the issuance to respondent on April 19, 1945, of appellant's check which appellant then charged against that account. Respondent claims that the check was paid upon the unauthorized indorsement by a guardian who was appointed for respondent in an incompetency proceeding in the Superior Court of the State of North Carolina. Respondent moved for an order striking out the answer of the defendant, and for a summary judgment in his favor, without statement of the rule or rules under which he moved. After the notice of motion was served, and before it was heard, and within twenty days after the service of its original answer, appellant served an amended answer pleading an affirmative defense not alleged in its original answer. Without renewal of the motion after service of the amended answer, the motion was heard and an order was made striking out both the answer and the amended answer. That order further granted respondent's motion for summary judgment in his favor. Summary judgment was thereupon entered striking out the answer and the amended answer and awarding respondent recovery as prayed for in the complaint. The appeal to this court is from that order and from that judgment. Order and judgment reversed upon the law, with $10 costs and disbursements, and the motion denied, without costs. In our opinion the amended answer was served in good faith and not merely for purposes of delay. Insofar as the motion was one to strike out the answer, that pleading was superseded by the amended answer and thereafter had no existence as a pleading. ( Snedecor v. Chapel, 192 App. Div. 915; Dorries Saddlery Co. v. Howe, 198 N.Y.S. 673; Dorf v. Corsa, 163 N.Y.S. 602; Angelini v. Merchants Desp. Transp. Co., 253 App. Div. 506; 3 Carmody on New York Practice, § 1141.) The motion for summary judgment should not have been granted, as the papers submitted presented issues of fact which must await trial. It may not be determined upon the affidavits presented that the check delivered by the appellant to the respondent on April 19, 1945, and then charged to his savings bank account by appellant, and then transported by respondent to North Carolina, did not constitute payment of the amount thereof to respondent. Furthermore, establishment by respondent of his residence in North Carolina, before the check was collected, is asserted by appellant's affidavits and denied by respondent. From the record presented it may not be determined whether, when the check was indorsed by the guardian and presented to the bank in North Carolina so indorsed, that bank purchased the negotiable instrument and then acquired full title to it or accepted it for collection only. (See Weissman v. Banque De Bruxelles, 254 N.Y. 488; United States v. Guaranty Trust Co., 293 U.S. 340.) Nolan, P.J., Johnston, Adel, Sneed and Wenzel, JJ., concur.