| New York Court of Common Pleas | Jan 7, 1895
This action was brought to recover $3,137.18, the amount represented by five checks drawn by the plaintiff to the order of certain parties against its banking account with the defendant, and paid by the latter upon such account, it being claimed that the indorsements of the payees designated were forgeries. The checks were drawn at the instance of the plaintiff’s secretary, one Beardsley, for payment to members of the association of moneys which, according to the purport of withdrawal notices presented by this individual to the plaintiff’s directors, were called for by these members upon
It was claimed, and the referee in fact found, that the plaintiff had delayed giving notice of these forgeries to the defendant, after their discovery, beyond a reasonable time; but no proof of damage resulting from such failure was adduced on behalf of the defendant, and the referee therefore determined this point in favor of the plaintiff upon the authority of Third Nat. Bank v. Merchants’ Nat. Bank, 76 Hun, 475" court="N.Y. Sup. Ct." date_filed="1894-03-16" href="https://app.midpage.ai/document/third-national-bank-v-merchants-national-bank-5506245?utm_source=webapp" opinion_id="5506245">76 Hun, 475, 27 N. Y. Supp. 1070, where it was held that such a defense proceeds upon the theory of an estoppel, and that damage to the defendant must be shown in order that it may prevail. The case cited was properly followed by the referee in determining this question as to the effect of the plaintiff’s delay upon the matters in suit. It is true that in other states the courts have held that a change of circumstances, and resulting damage to the bank’s interests, will be presumed where the depositor has unreasonably delayed giving notice to the bank of a discovered forgery; but such a rule has not as yet been adopted by our courts, and, at all events, its application could hardly be well called for in this case. As a matter of fact, this defendant cannot be said to have been damaged in any way by the delay noted. The forged indorsements were guarantied by the Shoe & Leather Bank, by the force of the latter’s indorsement (White v. Bank, 64 N. Y. 320; Turnbull v. Bowyer, 40 N.Y. 456" court="NY" date_filed="1869-06-12" href="https://app.midpage.ai/document/turnbull-v--bowyer-3597321?utm_source=webapp" opinion_id="3597321">40 N. Y. 456); and it is against that institution that the defendant’s remedy lies, not against the forger, whose escape the plaintiff’s failure to give prompt notice of the forgeries may have possibly facilitated. The referee lias found that the Shoe & Leather Bank is “a banking corporation of good credit and repute”; and it does not appear that the plaintiff’s delay in giving notice of these forgeries has injured that credit and repute, or affected the defendant’s recourse as against such bank in any way.
It is further claimed that the plaintiff was negligent in issuing checks payable to its members upon forged applications, the means of verifying the signatures affixed thereto being at hand; but we can find no force in the contention. As between these parties, the circumstances leading to the issuing of the checks cannot affect the plaintiff’s right that the moneys held by the defendant upon its account should be paid out only upon its orders, and to the payees named therein or to their order. This is not a case where the doctrine of contributory negligence finds any application in the aspect considered; and it certainly cannot be said that the defendant was at all misled or injured by the plaintiff’s having issued these checks under the circumstances noted. Whatever the methods leading to their preparation, the outward form of these checks, their validity, and the duties of defendant with respect to them were alike unchanged. Nor are we to hold that the plaintiff’s failure to earlier
It appears that the issues presented were correctly determined by the learned referee, and the judgment is therefore affirmed, with costs. All concur.