Naser v. First National Bank — 27 N.Y. St. Rep. 670

Majority

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James Naser et al., Resp’ts, v. The First National Bank of the City of New York, App’lt.^[1]

(Court of Appeals, Second Division,

Filed November 26, 1889.)

Headnote

1. Attachment—Proceeds of draft in hands of collecting agent.

D. & Co., of London, drew a draft on James Naser, at New York, and delivered it to McC. & Co., to transmit to defendant for collection, and

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the latter sent it to defendant to collect, and when Naser paid the draft to defendant with his certified check, the sheriff attached it in an action begun against D. & Co. in favor of Naser. Held, that the payment to defendant made it a debtor of D. & Co. to that amount, and that the claim was properly subject to the levy of attachment.

2. Same—Pleadings—Facts constituting a cause of action.

Naser’s complaint alleged that defendant had in its possession and control the claim or demand against Naser, belonging to D. & Co., and that by their directions it had been sent through their agents, McC. & Co., to the defendant; that it received for D. & Co., the amount of it, and that immediately thereafter the attachment was levied. Held, that the facts were sufficiently alleged.

Appeal from judgment of the supreme court in the first judicial department, affirming judgment entered on decision of the court in favor of the plaintiffs.

The action was brought by leave of that court to recover for application upon a judgment recovered by plaintiff Naser against Deneken & Co., the amount of a claim alleged to have been collected by the defendant for Deneken & Co., and upon'which it is also alleged that an attachment issued in the action in which such, judgment was recovered had been levied.

It appears that Deneken & Co. drew on Naser a draft as follows:

“ London, 19th June, 1880.

“ At sight, pay this first of exchange, second and third not, to our order, eight hundred and seventeen pounds, nine shillings, sterling, value in ourselves, which place to account as advised by

“ Deneken & Co.”

“ To James Naser, 7 Beaver Street, New York.”

The draft was endorsed: “Pay Messrs. McCulloch & Co., or order, value in account, Deneken & Co.,” and was handed to Mc-Culloch & Co., who endorsed upon it:“ Pay the First National Bank of New York, or order; McCulloch & Co.; ” and sent it to and it was received by the defendant. And afterwards the drawee delivered to the defendant and it received in payment of the draft, his certified check for $3,986, and immediately thereafter the sheriff levied the attachment. The judgment in that action was afterwards recovered against Deneken & Co., for upwards of $10,000, and after the defendant had refused to deliver or pay to the sheriff the amount of such claim to apply upon the execution issued on such judgment, this action was commenced. The plaintiffs recovered.

Fisher A. Baker, for app’lt; Samuel Untermyer, for resp’ts.

This motion to dismiss the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action was properly denied. It alleges that the defendant had in its possession and control the claim or demand against Naser, belonging to Deneken & Co., and that by their directions it had been sent through their agents, McCulloch & Co., to the defendant ; that it received for Deneken & Co. the amount of it and that immediately thereafter the attachment was levied.

The facts are sufficiently alleged that they owned the claim, and

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that the amount of it was due them from the defendant. And all other facts requisite to the cause of action were also alleged. Code, §§ 655, 677.

The objection, made, so far as appears, for the first time on this review, that no sufficient levy of the attachment was made to support the action, is not well taken. This objection seems to have been made upon the ground that the officer sought to levy it upon the check which Naser gave the bank in payment of the draft; ■and that as it was not taken into the custody of the sheriff no effectual levy was made. If such were the fact and it is available to the defendant, the objection might be urged with some force, as the statute provides that a levy under a warrant of attachment must be made upon a promissory note or other instrument for the payment of money by taking the same into the sheriff’s actual custody. Code, § 649. But this question is disposed of by the finding of the trial court that the sheriff attached the claim referred to of Deneken & Co., and all their property in the possession of the defendant. And as the claim resulting from the collection by the defendant of the draft was not capable of manual delivery, the fact of levy as found was sufficient. Ibid. And as there was no exception taken to such finding it is not the subject of review here. An exception was essential to raise a question of law, and may have been effectual for that purpose if there was no evidence tending to support the finding. Id., §§ 993, 994; Sickles v. Flanagan, 79 N. Y., 224 ; Bedlow v. N. Y. Floating, etc., Co., 112 id., 263 ; 20 N. Y. State Rep., 707.

The evident design was to levy the attachment upon the alleged claim due Deneken & Co., arising from the payment of the draft to the defendant. The main question for consideration is, whether the relation between those parties was such that the payment to the defendant made the latter a debtor of Deneken & Co., by whom the draft was drawn, endorsed and delivered to McCulloch & Co., in London. They endorsed and transmitted it to the defendant in New York, where the drawee resided. If it be assumed, as contended by the defendant’s counsel, that McCulloch & Co. were employed by the drawer to collect the draft, and that such was the unqualified contractual relation between them, there was no privity of contract between the defendant and Deneken & Co. In such case McCulloch & Co. would be the defendant’s principal, and to them it would be responsible. Colvin v. Holbrook, 2 N. Y., 126 ; Costigan v. Newland, 12 Barb., 456 . And the payment to the defendant would be treated as payment to McCulloch & Co., and they would then become the debtors of their principal on that account

There is some conflict of authority on the subject of the relation to the holder of business paper of a party to whom it is transmitted by the individual or bank employed by him to collect it. In some of the states it is held that it is within the implied authority of the collecting agent, when the paper is to be collected at some place remote from that of the business of the collecting agent so employed, for him to employ a sub-agent, in the locality where the party from whom payment is sought may be, to make the col

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lection on account of the holder; but in this state it is quite well settled that no such authority from the owner of the paper to the party employed by him is implied, and that without some understanding to that effect, or qualifying his liability in that respect, he is deemed to make such selection and employment of another on his own account to transact the business of collection. He assumes the responsibility, and is alone chargeable to his principal for the conduct in the premises of the person or bank so engaged by him, and to whom he transmits the paper for collection, and their relation is that of principal and agent, with the duties and responsibilities incident to such relation. Allen v. Merchant's Bank, 22 Wendell, 215; Montgomery Co. Bank v. Albany City Bank, 7 N. Y., 459 ; Ayrault v. Pacific Bank, 47 id., 570 . And such is the doctrine of the United States supreme court on the subject Hoover v. Wise, 91 U. S., 308 ; Exchange N. Bank v. Third N. Bank, 112 id., 276. And so far as the Bank of Orleans v. Smith, 3 Hill, 560 , is not in harmony with that view, it was disapproved in Montgomery Co. Bank v. Albany City Bank, supra.

But it does not follow that the correspondent of the collecting agent, unless he has made advances to the latter in good faith upon the paper, can, as against the owner, retain the proceeds of it. The latter may revoke the agency he has conferred, and seek the paper or its proceeds in the hands of such correspondent, or he may follow it, and reach them until it or they have found their way into the hands of a bona fide holder for value, who has taken it from the party clothed with the apparent title. This is an equitable right, not necessarily resting in privity of contract with the party from whom such relief is sought. The occasion for it usually arises from the insolvency of his collecting agent or some other cause rendering such remedy desirable for his protection. Warner v. Lee, 6 N. Y., 144 ; Commercial Bank v. Marine Bank, 1 Abb. Ct. App. Dec., 405 ; Dickerson v. Wason, 47 N. Y., 439 ; F. & M. N. Bank v. King, 57 Pa. St., 202 .

In the present case there was no disaffirmance by Deneken & Co. of the agency of McCulloch & Co., nor were any steps taken by the former to charge the defendant with the duty or liability to pay directly to them the proceeds of the draft. But whether, in such case, a claim in the hands of the defendant subject to levy of the attachment would result from the collection by it of the draft, is a question which, in view of the facts as found by the trial court, does not necessarily arise, and the consideration of it is not further pursued here. The court found that Deneken & Co. delivered the draft to “ McCulloch & Co., at the city of London, England, upon the employment to transmit such claim to the defendant, at the city of New York, for collection; ” and “ that the said firm of McCulloch & Co., in pursuance of the employment of Deneken & Co., did forward or send to the defendant aforesaid the claim or demand, and did instruct and direct the defendant to collect from said James Naser the said claim or demand ; ” also, “ that in pursuance of such employment the defendant did receive from Deneken & Co., through their said agent, McCulloch & Co.,

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the aforesaid claim, or demand * * * and after having re-, ceived the same, the defendant did receive for Deneken & Co.. the sum of $3,986, * * * in payment of the said claim.”

The facts so found are clearly to the effect that McCulloch & Co. were employed by Deneken & Co. to transmit the draft to the defendant to collect it for the drawer. The consequence of the-facts represented by such findings was that McCulloch & Co. discharged their duty to the drawer when they transmitted the draft to the defendant with directions to collect it; that such transmission was made through them by Deneken & Co., and having made no-advance upon it to McCulloch & Co. the defendant may be deemed to have collected it as the agent of and for the drawer of the draft, and therefore the claim arising from the collection was due to the latter from the defendant. Bank of Washington v. Triplett, 1 Peters, 25. In that view, the claim was properly subject to the levy made of the attachment. The trial court found! upon the request of the defendant that “ Deneken & Co. delivered the bill of exchange * * * to McCulloch & Co. for collection,, as the agents of Deneken & Co., and for their account.” If this finding essentially differs from the others, the defendant is entitled to the benefit which it may give, as that the most favorable to the defendant is available in aid of its exceptions. Bonnell v. Griswold, 89 N. Y., 122 . But all the findings so far as they reasonably can be so construed must be reconciled. Green v. Roworth, 113 N. Y., 462 ; 23 N. Y. State Rep., 149. There is not necessarily any conflict between those findings. The fact that the bill was delivered for collection to the London bankers, as, .agents of the drawer, is not inconsistent with the other facts as found, that within the agency was the employment to transmit the draft to-the defendant for collection, and that the latter received it from Deneken & Co. through McCulloch & Co.

These views lead to the conclusion that upon the facts as found the levy of the attachment was effectually made, and that none of the exceptions to the conclusions of law which the court found or refused to find were well taken.

The question of the sufficiency of the evidence to support the principal findings before mentioned was raised by exception to the denial of the motion to dismiss the complaint.

The motion was jproperly denied. There was some evidence to permit the finding that it was within the authority of McCulloch & Co. to transmit the draft for the drawer to the defendant; and that it was sent accordingly. The evidence of some of the members of the firm was, that they sent the draft to the defendant for collection for the firm of Deneken & Co., which is neither affirmed or denied by the evidence of Mr. Deneken, produced at the trial. And the fact that McCulloch & Co. had no account with the drawer of the draft is consistent with that view of the evidence. The question of the weight of the evidence is not here for consideration.

If these views are correct, the judgment should be affirmed.

All concur.