146 Misc. 890 | N.Y. App. Term. | 1931
Judgment unanimously reversed upon the law, with thirty dollars costs to appellant, and complaint dismissed, with appropriate costs in the court below. The plaintiff sues on a check made by the defendant, the payee of which concededly did not exist. The check was one of a number issued on policies where fraudulent claims were made by some of defendant’s agents, among whom was one Peterson. It was stipulated that the latter forged the name of the alleged payee. Under such circumstances, the plaintiff could not recover on the check even though it was conceded that he had no knowledge of the forgery and paid value, unless he
But the defendant did not allege payment. The plaintiff, however, claims that the stipulation as to the action brought by the defendant, subsequent to the arrest of Peterson and subsequent to the time when the credit had been re-established by the defendant’s bank, warranted a finding of ratification or an election to hold Peterson. But that stipulation was to the effect that the action for conversion was brought because of the payment by defendant of checks including this one. It was not proved that defendant claimed in that action the payment of this check was to plaintiff. That stipulation also conceded that the moneys and property had been turned over to the defendant because of that action, that judgment had been obtained therein against Peterson. Nothing in the stipulation warrants a finding that the defendant ever recognized any right in Peterson to make the transfer of the check by indorsement thereof. Neither does it appear that in any way the defendant sought to get from Peterson any money that the plaintiff may have paid over on account of the check. The suit was consistent with the attitude which the defendant had maintained. It did not waive any tort committed by Peterson. It sued him for conversion, claiming he had converted the moneys paid by it. It may be defendant, in fact, had no cause of action against Peterson on this check. But, when it sued him, it had already as to plaintiff taken its position that the check was worthless. It had also caused Peterson’s arrest. Nothing shows that defendant, by instituting the conversion action,