Allen v. Tarrant & Co.

40 N.Y.S. 114 | N.Y. App. Div. | 1896

O’Brien, J.:

It is true that: delivery of a. cheek'is not payment, “unlessin some very special case, if such a case can be supposed, where the check was taken in- absolute payment and extinguishment of the debt.” (Thomson v. Bank of B. N. A., 82 N. Y. 8.) The delivery of a check to the principal or his authorized agent and' the subsequent payment of the same operates to discharge an indebtedness for which it is given.

The evidence here shows that the checks intended as payment of " "the indebtedness were given to: one Cook,, who was in plaintiff’s employ, and subsequently paid by defendant’s bank. Upon the questions as to whether Cook was authorized to receive or indorse them, the evidence is that prior to the giving of the checks in dispute the plaintiff, through Cook, received a check of the defendant’s which was deposited in the plaintiff’s account in bank and paid by the defendant. ' If the plaintiff had desired to disavow Cook’s action in receiving checks in settlement of accounts, then seemingly was the time to have notified defendant. Having kept silent,, and to some extent justified defendant’s belief, that Cook was authorized to accept, checks, this was some evidence bearing on the question of Cook’s authority.

There ivas in addition the evidence that plaintiff charged Cook in -a Police Court with grand larceny, and in the affidavit stated that Cook had stolen his property, viz., the proceeds of the checks. Unless he regarded Cook as his agent to receive checks, indorse them and collect the money, he could not truthfully or legally claim that the money received by Cook was his. After waiting two years, however, he assumed another and inconsistent position, and sued the defendant upon the theory that Cook was not authorized, and that the money received was not the plaintiffs.

Although plaintiff was a witness, he did not say that the indorsements of the checks were forged or that Cook was not authorized to receive or indorse them, but, relying on the presumed weakness of the evidence to support the defense, he moved to direct a verdict in his favor, which was granted, and to which defendant excepted, as it did to the denial of its motion to go to the jury on the question of Cook’s authority. These exceptions, we think, were well taken, because not only was there some evidence from which the jury could infer Cook’s authority, but there was also evidence to justify a finding that the money received on the checks was lawfully in Cook’s possession as agent for plaintiff and that he converted it to his own use.

We do not think that this case, in principle, can be distinguished from Sage v. Burton (84 Hun, 267).

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.