241 A.D. 470 | N.Y. App. Div. | 1934
Lead Opinion
The plaintiff, claiming to be a holder in due course, has recovered judgment on a check made by the defendant Kline Bros. Co., Inc., to the order of “ Tri Rite Dresses.” The check was cashed by the plaintiff for one Harry Goodman, whose signature appears on the check as indorsee below the alleged indorsement of Tri Rite Dresses. Between January and- May, 1933, fifteen other checks of the defendant, payable to Tri Rite Dresses and indorsed by Goodman, were cashed by the plaintiff and paid by the defendant. It was subsequently discovered that these checks and the check involved in this action were procured by the fraud of Aranow, an employee of Kline Bros. Co., Inc., in repre
It is suggested that the maker was negligent, first in issuing the check to the order of “ Tri Rite Dresses ” and later in failing to detect the forged indorsements when fifteen other checks, similarly indorsed, were paid. But the maker had the right to make the check payable to whomsoever it pleased and as a condition of payment to require indorsement by the payee and by no one else. In this respect there was no such negligence as will estop him to dispute the plaintiff’s title. “ It certainly is not a general rule of law that a person can be deprived of his property by an unauthorized transfer thereof, simply because he has not exercised ordinary care to prevent such transfer. I may carelessly
The determination of the Appellate Term and the judgment of the Municipal Court should be reversed and judgment directed in favor of the defendant Kline Bros. Co., Inc., dismissing the complaint upon the merits, with costs in all courts.
Finch, P. J., and Martin, J., concur; Merrell and O’Malley, JJ., dissent and vote for affirmance.
Dissenting Opinion
(dissenting). We are here concerned with the right of the plaintiff to recover from the defendant Kline Bros.
The cause was tried before the court without a jury. The trial justice heard and saw the witnesses. To bis “ sophistication and sagacity” the law confided “ the duty of appraisal. * * * His was- the opportunity, the responsibility and the power to decide.” (Boyd v. Boyd, 252 N. Y. 422, 429.)
The evidence justified a finding of the following facts: Plaintiff conducted a cigar manufacturing business since 1899, which was located where he cashed the check in question since 1909. He also cashed checks as an aid to business, as persons thus accommodated in most instances purchased merchandise. He knew Harry Goodman, whose signature appears on the check as indorsee, since January, 1933. Plaintiff had called at Goodman’s place of business, though he had not seen him there, and Goodman had been to see plaintiff several times.
Prior to cashing the check sued upon, plaintiff had cashed some fifteen other checks of the defendant, all payable to Tri Rite Dresses and indorsed by Goodman. These checks had been dated from January 19 to May 13, 1933. The check sued upon was dated May 24, 1933.
The earlier checks cashed by plaintiff had been honored by the defendant. So far as this record discloses they have never been disputed. Placed in evidence by the defendant they clearly established that the indorsement of Tri Rite Dresses by Goodman was in the same handwriting as the indorsement on the check here sued upon. No evidence was offered by defendant to show either prior or present improper indorsement.
On May 24, 1933, Goodman called plaintiff on the telephone. As a result one Ferrara came to plaintiff’s place of business with the check sued upon, indorsed by Tri Rite Dresses through Goodman. After deducting the amount of a small purchase, the plaintiff gave Ferrara his own check for the balance of defendant’s check. Goodman had been introduced to plaintiff by Ferrara, or his brother, and the other checks cashed had been presented by Ferrara.
The record fails to show that the plaintiff had any knowledge of the manner in which the defendant had been induced to sign any of the checks in question. The court was, therefore, justified in finding, in addition to the facts above detailed, that plaintiff
We are of the opinion that the evidence here detailed was sufficient to justify a recovery by the plaintiff. He sufficiently proved the indorsement of the payee. The fifteen other checks produced by the defendant show that without objection it paid on an exactly similar indorsement. As already noted, defendant offered no proof that any of the checks were not properly indorsed.
The question of a fictitious payee is not here presented. The payee Goodman really existed and was using the name Tri Bite Dresses. Defendant was deceived as to its indebtedness to the payee, rather than as to his identity.
The plaintiff, therefore, having shown that he parted with value for the check sued upon; that he was without actual or constructive knowledge of the fraud which induced its issue; and having proved the indorsement of the payee, was entitled to judgment.
It follows, therefore, that the determination of the Appellate Term should be affirmed, with costs.
Merrell, J., concurs.
Determination appealed from and judgment of the Municipal Court reversed and judgment directed in favor of the defendant, appellant, dismissing the complaint upon the merits, with costs in all courts.