124 Misc. 173 | N.Y. App. Term. | 1924
The plaintiff instituted this suit against the defendant Chase National Bank to recover the sum of $657.50 paid by it on a check of which plaintiff was maker and upon which was forged the name of the payee. Judgment was awarded plaintiff by the court below. The defendant Chase National Bank on this appeal contends that the court below erred in holding that section 326 of the Negotiable Instruments. Law has no application to forged indorsements.
Section 326 of the Negotiable Instruments Law provides:
“ Recovery of forged check. No bank shall be liable to a depositor for the payment by it of a forged or raised check, unless within one year after the return to the depositor of the voucher of such payment, such depositor shall notify the bank that the check so paid was forged or raised.”
It is conceded that the bank received no notice of the forged indorsement from plaintiff until some two years after the bank’s canceled checks or vouchers were returned to him. Obviously, therefore, if section 326 comprehends within its scope forged indorsements, the plaintiff is estopped from now asserting his claim against the bank. Our view, however, is that the notice required to be given in section 326 is limited to cases where payment is made of a check upon which the maker’s signature is forged or the check is raised.
The commonly accepted meaning of the words “ a forged check ”
Originally this action was instituted against the bank that paid the check upon the forged indorsement. By successive motions, to which no objection was raised, the bank with which the check in question was deposited and the person who made the deposit of the check were brought in as party defendants, each in turn claiming that the party to be brought in is hable for the claim made against it. (Civ. Prac. Act, § 193, subd. 2.)
The defendant Kobrin Bros.’ indorsement was a warranty that the prior indorsement was genuine and upon the discovery of the forgery they became immediately liable to the defendant Phenix Bank with which they deposited the check and which credited them with the amount (Lennon v. Grauer, 159 N. Y. 433; Packard v. Windholz, 88 App. Div. 365), and the Phenix Bank is thereby entitled to judgment against Kobrin Bros, for the amount of the check.
Orders reversed and judgment modified so as to further adjudge that the defendant Chase National Bank recover of the defendant Chatham and Phenix National Bank the sum of $717.93, and that said Chatham and Phenix National Bank recover of Leo Kobrin and Abe Kobrin individually and as copartners the sum of $717.93, and judgment as so modified affirmed, with $25 costs to the Chase National Bank and the Chatham and Phenix National Bank against Leo Kobrin and Abe Kobrin. Appeal by Leo Kobrin and Abe Kobrin dismissed.
All concur; present, Bijtjr, Wagner and Levy, JJ.