Abate v. Bushwick Sav. Bank

Cullen & Dykman for Bushwick Savings Bank, defendant. Albert Hutton for Dime Savings Bank of Brooklyn, defendant. Von Sothen, Aicher, Moffett & O'Hare for Hamburg Savings Bank, defendant. Daniel F. Scanlon for plaintiff. of all such damages." (See, also, Mercantile Factors Corp. v. Warner Bros. Pictures, 215 App. Div. 530, 534, and Cady v. Allen, 22 Barb. 388, affd. 18 N.Y. 573.) Neither may the plaintiff recover for counsel fees which he claims he expended in the litigation. It has been uniformly held that payment of legal costs incurred in the action is the full measure of liability incurred by an unsuccessful litigant. (See 39 A. L. R. 1218 and cases therein cited.) In Sasanow v. Williamsburg Sav. Bank (256 App. Div. 928) it was held that the provisions of subdivision 5 of section 239 of the Banking Law were in addition to the other remedies which were afforded to a bank and not restrictive of their rights. A complete discussion of the authority of a bank to withhold payment can be found in Community Volunteer Fire Co. of Nimmonsburg v. City Nat. Bank of Binghamton (171 Misc. 1027) from which it appears that the rule is well settled that a bank is justified in not making payment where a claim is made upon it which is apparently meritorious; that under those conditions a bank may call upon the parties making adverse claims to litigate the issue of ownership or title to the moneys in the account and in that manner place itself in the position of a stakeholder. The banks in this case at no time made any personal claim to the funds and upon service of a demand by Michael Gallo desired only that a final adjudication be had with respect to the ownership of the moneys in the accounts. To do other than what the banks did would place them in jeopardy with respect to the claims of Michael Gallo. Under no condition can this court find that the banks were influenced by other than the desire to protect their depositors. It should be noted in passing that the judgment entered in the Supreme Court took cognizance of the position taken by the banks and made no award of costs against them for failing to comply with the requests of the plaintiff. The respective motions of the defendants are granted and the complaints dismissed.