#### The Citizens Trust Company of Schenectady, N. Y., Appellant, *v.*Jennie Levine, Respondent.

Third Department,

May 6, 1914.

Banking — action against depositor for overdraft — evidence — failure of bank to credit defendant with deposit.

In an action by a bank to recover from a depositor an overdraft, it appeared that another person had made a deposit which was, through mistake, entered in the account of the defendant; that she withdrew all *185the funds from her own account, including the erroneous credit, but claimed that the plaintiff had failed to credit a similar sum which had been deposited by her. Evidence examined, and *Se Id,*insufficient to sustain a finding that the defendant’s account was not overdrawn in the amount claimed.

Evidence that on a prior occasion the plaintiff had failed to credit the defendant with a deposit was improperly admitted.

Appeal by the plaintiff, The Citizens Trust Company of Schenectady, N. Y., from a judgment of the County Court of Schenectady county, entered in the office of the clerk of said county on the 19th day of June, 1913, upon the verdict of a jury dismissing the complaint, and also from an order entered in said clerk’s office denying plaintiff’s motion for a new trial.

*William Dewey Loucks,*for the appellant.

*Walter F. Wellman,*for the respondent.

Smith, P. J.:

The action is brought to recover from the defendant an overdraft. Defendant denies liability, asserting that her account has not been overdrawn. From the proof it appears that upon the 28th day of October, 1912, one Jessie Lewis made a deposit of sixty-three dollars, which was, by mistake of the bank clerk, entered in the account of this defendant. The name upon the deposit slip was not distinctly written, and the mistake was one which might easily occur. This defendant withdrew funds from her account until she had substantially exhausted her account, including the mistaken credit of sixty-three dollars. When the bank book of Jessie Lewis was presented and it was found that she had not been credited with this amount an investigation was made, and it was discovered that the credit had been mistakenly given to Jennie Levine. The proof of this mistaken credit upon the defendant’s account is conclusive. But the astounding proposition is made that the plaintiff failed to credit a similar sum- which had been in fact deposited by the defendant and which should have appeared in her account. No deposit slip was found corroborating the defendant in this claim. Most unfortunately her bank book is not produced, she claiming that it has been lost. Her recollection is not clear as to the amounts of her deposits. The story is so improbable in *186the face of explicit denials by the officers of the bank that an appellate court would not be justified in sustaining a verdict based thereupon.

Evidence was admitted over the plaintiff’s objection, to the effect that at a prior time this bank had failed to give a credit to this defendant for a deposit made. We can conceive of no rule of law which would make this evidence permissible. The fact that a mistake had been theretofore made does not prove plaintiff’s claim upon this trial. Evidence of negligence upon a former occasion does not prove negligence in this instance, and such evidence was we think improperly admitted.

The judgment and order should be reversed upon law and facts and a new trial granted, with costs to the appellant to abide the event. The finding of fact of which this court disapproves is the finding that the defendant’s account was not overdrawn in the amount claimed in the complaint.

All concurred.

Judgment and order reversed on law and facts, and new trial granted, with costs to appellant to abide event. The finding of fact of which the court disapproves is the finding that the defendant’s account was not overdrawn in the amount claimed in the complaint.