Hagen v. Bowery National Bank — 64 Barb. 197

Majority

p. 189

Hagen vs. The Bowery National Bank of New York.

Headnote

The defendant certified a check drawn upon it as being good. The plaintiff took the check in the ordinary course of business, for value, and in good faith; and the check turned out to be a forgery. Held that it could not be questioned that the bank was liable to make good its certificate, by paying the check.

The principle on which this liability rests is, that since somebody must be a loser by the deceit, it is more reasonable that he who confides in the deceiver should be a loser, than a stranger; and has become an established rule of law, in such cases.

Whether the endorsement purporting to be that of the payee named in the check was genuine or not; or whether the person so named is a fictitious person, is immaterial. There can be no real payee of a forged instrument.

As between the holder and the bank, the liability of the latter attaches upon

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the check being certified. And it being impossible to make title to money payable upon a forged check, through an endorsement thereof, proof of the genuineness of the endorsement is unnecessary for that purpose.

Where the evidence showed that the person from whom the plaintiff received the check went by the name endorsed thereon, and that the endorsement was made by him; it was held that this was quite sufficient to protect the plaintiff against any imputation of negligence or bad faith in taking the check.

An advertisement of the forgery of a check, if not brought home to the holder, can have no effect whatever, upon Ms right to recover thereon.

APPEAL by the defendant from a judgment rendered in favor of the plaintiff.

The action was brought to recover the amount of a check drawn upon the defendant, which proved to be a forgery; and which the defendant had certified to be good, before it came into the plaintiff’s hands.

The defendant certified the check in question as being good. The plaintiff took the check in the ordinary course of business, for valué and in good faith. There is nothing shown to impeach his title. The check turned out to be a forgery. It cannot be questioned that the bank is liable to make good its certificate by paying the check. (Farmers and Mechanics’ Bank v. Butchers and Drovers’ Bank, 26 How. Pr. 1 . Price v. Neal, 3 Burr. 1354. Com’ l &c. Bank v. First Nat. Bank, 30 Md. 11 .) The principle upon which this liability rests is stated by Holt, Ch. J., in Hern v. Nichols, (1 Salk. 289,) namely, that “seeing somebody must be a loser by this deceit, it is more reason that he that confides in the deceiver should be a loser, than a stranger,” and has become an established rule' of law in cases identical with this.

Whether the endorsement purporting to be that of the payee named in the check was genuine or not, or whether the person so named was a fictitious person, imperfectly appears. But it is immaterial whether it was one or the other. There can be no real payee of a forged instrument. As between the plaintiff and the bank, the

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liability of the latter attached upon the check being certified. And as it is impossible to make title to money payable upon a forged check, through an endorsement thereof, proof of the genuineness of the endorsement is unnecessary for that purpose. The evidence shows that the person from whom the plaintiff received the check went by the name endorsed thereon, and that the endorsement was made by him. This is quite sufficient to protect the plaintiff against any imputation of negligence or bad faith in taking the check.

[First Department, General Term, at New York,

November 4, 1872.

Leonard and Gilbert, Justices.]

The advertisement of the forgery not having been brought home to the plaintiff can have no effect whatever, upon his right to recover. (Raphael v. Bank of England, 17 C. B. 161 .)

For the reasons stated, we are of opinion that the judgment should be affirmed, with costs.

Leonard, J., concurred.

Ingraham, P, J., did not sit.

Judgment affirmed.

Cases cited

Farmers' & Mechanics' Bank of Kent County, Maryland v. Butchers' & Drovers' Bank 26 How. Pr. 1 N.Y. p. 190