Opinion
September 23, 1970
Appeal from the Civil Court of the City of New York, Queens County, ANTHONY F. ZAGAME, J.
Cravath, Swaine Moore ( John B. Wynne, John W. Barnum, Howard G. Kristol and Martin Michaelson of counsel), for appellant.
Abraham M. Feinstein for respondents.
Present — SCHWARTZWALD, J.P., RINALDI and CONE, JJ.
In our opinion, the stipulation was inadequate and the proof insufficient to permit a determintaion of the issues presented, particularly with regard to all relevant facts and circumstances preceding, during and subsequent to plaintiff Mollie Kalb's execution of the withdrawal slip and the presentation of her passbook and withdrawal slip to defendant bank by a person other than said plaintiff. Moreover, it was error to consider testimony adduced at an examination before trial without affording defendant an opportunity to object to specific questions, which right had been expressly reserved for the trial.
The judgment should be unanimously reversed and a new trial ordered, with $30 costs to defendant to abide the event.
Judgment reversed, etc.