Dykman v. Northridge — 30 N.Y.S. 164

Majority

p. 164

(80 Hun, 258.)

DYKMAN v. NORTHRIDGE.^[1]

(Supreme Court, General Term, Second Department

July 27, 1894.)

Headnote

1. Banks and Banking—Discounts—Bona Bide Purchase.

In an action by a bank against the accommodation indorser of a note made by its cashier, and discounted by the bank, evidence that the proceeds were credited to the “cashier account” is insufficient to constitute the bank a holder for value, the money being still in possession of the bank.

2. Evidence—Entries in Bank Books—Admissibility.

Entries in bank books, made by persons having no knowledge of the transaction, are inadmissible to show payment of a check.

Appeal from circuit court, Kings county.

Action by William 2ST. Dykman, as receiver of the Commercial Bank, against William J. Northridge. From a judgment in favor of plaintiff entered on a decision by the court without a jury, defendant appeals. Reversed.

Argued before BROWN, P. J., and DYKMAK and CULLER, JJ.

Thornton, Earl & Keindal, for appellant.

Jas. C. Bergen, for respondent.

This action is upon a promissory note, dated May 10, 1893, made by John J. Vail to the order of appellant, payable three months after date, at the Commercial Bank. Vail was the cashier of the bank, and the court found that the appellant indorsed the note at his request, and for his accommodation. Under the pleadings, it was essential to the plaintiff’s recovery that he should prove that the bank was a holder for value, and this he attempted to do by the production of the bank’s books and reading in evidence various entries in reference to the note. But no witness was produced to give testimony as to the transaction by which the bank acquired the note, although there is no reason apparent why the evidence of the cashier or paying teller, who would appear to have knowledge of the matter, was not taken. By appropriate entries read from the discount book, it appeared that the note had been discounted by' the bank, and its proceeds credited to the cashier account. But, obviously, that was not sufficient to give to the bank the character of a holder for value. The cashier’s relation to the bank was such that money credited to an account kept in the name of his official title must be deemed to be in the possession of the bank. The plaintiff then produced a cashier’s check for the amount of the proceeds of the note, signed by Vail, and payable to himself, individually; also the check book containing the stub from which the check was torn; and read in evidence,

p. 165

against the defendant’s objection and exception, from a book of paid checks, an entry of the payment of the check, and from the ledger an entry charging such check to the cashier account. The clerk who made these entries testified that he had' no knowledge of the transaction, and that he made the entries in the books from the checks taken from the paying teller’s desk. No other testimony was offered, and upon these facts the court found the check was paid. The bank could not become a holder for value of the note by crediting its amount to the cashier. Unless he received the money as an individual, and not as cashier, the bank parted with nothing. Bank v. Valentine, 18 Hun, 417 . The entries in the bank’s books were not admissible as proof of payment, and the objection thereto was well taken. But the entries did not prove the fact of payment. They were not made by persons having knowledge of the transactions which they purported to record, and the inference drawn from them is all based upon the assumption that a check found upon the desk of the paying teller has been paid by the bank. The court could not assume such a fact. If it had any relevancy to the case, it was a matter to be established by competent proof. The evidence is wholly insufficient to support the judgment, and it must be reversed, and a new trial granted, with costs to abide the event. All concur.