Morgan v. Bank of New-York — 11 N.Y. 404

Majority

p. 396

Morgan against The Bank of the State of New-York.

Headnote

In a suit against a bank for money deposited with it by the plaintiff, the defend- ■ ant produced a check upon the bank, which it had paid, for the amount of the money, signed by the plaintiff and payable to the order of Corlies & Co., and with the name of this firm written upon it; it was proved that this was not the indorsement of the firm, and that it never owned or had any interest in the check; Held, that the plaintiff was entitled to recover.

Action in the superior court of the city of New-York to recover the sum of $716.92, deposited by the plaintiff in the defendant’s bank prior to April 29, 1852. The answer alleged that the defendant paid the moneys in the complaint mentioned to the order of the plaintiff. Upon the trial before Mr. Justice Duer, it was admitted by the defendant, that the plaintiff deposited in its bank the sum above mentioned at the time stated, and that the plaintiff before suit requested payment of the same, which was refused. The defendant produced two checks which were admitted to be signed by the plaintiff, the one dated April 29, 1852, whereby the defendant was requested to pay to the order of Gr. W. Corlies & Co. $271.04, and the other dated May 3d, 1852, by which the defendant was requested to pay to the order of Gr. W. Corlies & Co. $445.88. The checks purported to be indorsed respectively by G-. W. Corlies & Co., but the genuineness of this indorsement was disputed by the plaintiff. The defendant rested, and the plaintiff called George W. Corlies, who testified that he was a member of the firm of G. W. Cor-lies & Co. which, since prior to April, 1352, had been and was com

p. 397

posed of himself and Royal H. Waller, and that the name of G-. W. Oorlies & Co., indorsed on each of said checks, was not the indorsement of his firm, or in the handwriting of either of its members, or of any clerk or agent thereof. On cross examination he testified, that his firm never had any dealings with the plaintiff; that the latter never owed any thing to the firm, and that the checks were never the property of or delivered to it. Upon these facts, the court directed the jury to find a verdict in favor of the plaintiff for the amount claimed ; the counsel for the defendant excepted to the decision and direction. The judgment entered upon the verdict was affirmed by the superior _ court at general term. (See 1 Duer, 434 .) The defendant appealed to this court, Where the case was submitted on printed points.

A. W. Classon, for the appellant.

Wm. M. Evarts, for the respondent.

The bank had received from the plaintiff deposits of cash amounting to $716.92, and were consequently indebted to him in that amount. To an action for this sum they claimed, by way of defense, to have paid the amount by the plaintiff’s order. This defense they failed to prove upon the trial. They proved an order .by the plaintiff to pay the money to G. W. Corlies & Co., or their order, and the payment of the money thereupon to somebody, but did not prove that the money was paid to G. W. Corlies & Co., or their order. On the contrary,_the plaintiff proved that the indorsements of the checks with the name of G. W. Corlies & Co. were forgeries. Upon these facts the plaintiff was entitled to recover. The money had not been paid to and according to the plaintiff’s order. (Coggill v. Am. Exc. Bank, 1 Comst. 113. Weisser v. Denison, Court of Appeals, Mar. T., 1854.) The judgment should be affirmed.

Judgment affirmed.