Opinion
April 11, 1919.
Meyer Kraushaar [ Emanuel Celler with him on the brief], for the appellant.
Thomas Cradock Hughes [ Robert H. Wickert with him on the brief], for the respondent.
The trial court directed a verdict for plaintiff for nominal damages, but he claims general damage which follows as a matter of law. He conceded he had suffered no actual damage, and he cannot be allowed punitive damages unless he can show express malice, in addition to that which the law implies from the publication of defamatory matter. ( Bingham v. Gaynor, 135 App. Div. 426.) Substantial damages can be awarded in such an action only when the bank is guilty of express or implied malice, i.e., where the bank in refusing payment acts willfully, without just cause or excuse, or with improper motives. ( Clark Company v. Mount Morris Bank, 85 App. Div. 362; affd., 181 N.Y. 533.) That is not the instant case. I think the bank was justified in withholding payment of the checks in view of the complaint which had been served upon it, and because the aggregate of the checks exceeded one-half of the drawing account balance, as to which the plaintiff in that action claimed ownership. The notation on the returned checks was an error of the bank's clerk, and the evidence fails to show that it was actuated by malice. Davis v. Standard National Bank ( 50 App. Div. 210) stands only for the proposition that, if the action is based upon a malicious and wrongful act of the defendant, resulting in substantial damages, the jury are entitled to consider, not only the actual money damages, but if the effect of such damage is to produce mental suffering and anxiety, they are at liberty to award damages on that head also.
The judgment and order should be affirmed, with costs.
JENKS, P.J., MILLS and JAYCOX, JJ., concurred; BLACKMAR, J., dissented in separate memorandum.
I dissent. As to three of the checks there was no excuse for the dishonor, for the complaint of the wife demanded judgment for half of the account only. The remaining half, without reference to the special account, would have sufficed to pay these checks. The notation "account closed" was false and unjustified. From this an inference of malice can be drawn. The question of damages should have been submitted to the jury.
Judgment and order affirmed, with costs.