Owen E. Abraham, Assignee for the Benefit of Creditors of Charles E. Ball and Louis E. Whicher, Composing the Firm of Ball & Whicher, Appellant, v. The American Exchange National Bank, Respondent

Owen E. Abraham, Assignee for the Benefit of Creditors of Charles E. Ball and Louis E. Whicher, Composing the Firm of Ball & Whicher, Appellant, v. The American Exchange National Bank, Respondent. Appeal from an order directing that a juror be withdrawn and that the trial entered upon before him be declared a mistrial. [MAJORITY — Smith, J.:] Smith, J.: This appeal must be dismissed, because a reversal of the order wifi accomplish nothing. The trial of the action is of necessity postponed until it can be moved again for trial, and a reversal of the order would not reinstate it in the place it then held upon that calendar. The dismissal should be without costs, however. The action is brought to recover moneys claimed to have been paid by the plaintiff’s assignor under fraudulent representations made by the payee. These moneys were deposited in the defendant bank and the defendant at once had notice of the fact that they were claimed to have been fraudulently acquired by the payee. It is difficult to see how any right of the plaintiff could be defeated by the bank by a paying out of the money after such notice, but without deciding upon the effect of such payment there can be no doubt that if the payment were shown it was competent to prove that such payment was made after indemnity given. The appeal should be dismissed, without costs. Scott, Dowling and Page, JJ., concurred. Appeal dismissed, without costs.