201 A.D. 333 | N.Y. App. Div. | 1922
The action is for a conversion of a check drawn by the plaintiff on the Gotham National Bank and payable to the B. & B. Motor Sales Corporation in the amount of $7,378. The check was deliv
The defendant is a foreign corporation, and the plaintiff caused an attachment to be issued against the defendant’s property upon affidavits showing the foregoing facts, and the affidavit of the trustee in bankruptcy that the books and records of the said corporation do not show that the said check was ever deposited to the account of the said corporation, or that any of the proceeds of said check were ever paid to the said corporation or to the receiver or trustee in bankruptcy of said corporation, or were ever employed for any corporate purpose.
The defendant, appearing specially for that purpose, moved to vacate the attachment for the insufficiency of the papers on which it was granted.
The question in the case resolved itself simply into this: Was the fact that the check was indorsed, in addition to the corporate indorsement, by the two officers individually, sufficient to charge the defendant with notice that the check had been diverted to their own use?
Mr. Justice Lehman’s opinion at Special Term satisfactorily discusses and answers this question, and we should not think it necessary to express any further opinion, were it not for the claim of the appellant’s counsel that this case is controlled by Wagner Trading Co. v. Battery Park Nat. Bank (228 N. Y. 37). In fact he states that the complaint in the instant case was modeled upon the complaint in that case. The Wagner case is, in my opinion, clearly to be distinguished from the instant case. Wagner was the
The mere fact that the check bore the personal indorsement of the officers of the corporation did not show an appropriation of the proceeds thereof to their own personal use, nor was that fact alone sufficient to put the defendant upon inquiry and charge it with knowledge of any fact such inquiry would have disclosed.
The order should be affirmed, with ten dollars costs and disbursements.
Clarke, P. J., Lattghlin, Dowling and Merrell, JJ., concur.
Order affirmed, with ten dollars costs and disbursements.