65 N.Y.S. 757 | N.Y. App. Div. | 1900
This is an action of replevin of 10 municipal bonds issued by the city of Yonkers. In 1875 the bonds were held by the plaintiff, from whom they were stolen, together with other securities aggregating $3,000,000. Eighteen years after this robbery one George H. Pell, a customer of the defendant’s bank, presented the bonds to the bank as collateral security for a loan of $7,500, which the defendant granted, and has since that time had the bonds in its custody; the loan not being repaid. This case has been once before in this court, and upon such appeal it was determined that the bonds in question were negotiable securities, and that, although they were stolen from their owner, yet if the defendant, without notice of the theft, and otherwise acting in good faith, advanced money upon them before their maturity, it obtained good title thereto, although the plaintiff had at the time of the robbery advertised its loss and described the bonds. 42 App. Div. 147, 59 N. Y. Supp. 51. The defendant is therefore to be protected to the extent of its property interest in the bonds, unless they were taken under such circumstances as to put it upon inquiry or charge it with notice of the infirmity of Pell’s title when it received them. Bank v. Diefendorf, 123 N. Y. 191, 25 N. E. 402, 10 L. R. A. 676. It must be regarded as settled by our former decision that the notice given át the time of the robbery, through the public press and otherwise, is not sufficient, standing alone, either to show notice to the defendant, or indicate lack of care upon its part in taking the bonds. It is now insisted by the appellant, however, that this fact, coupled with other facts and circumstances disclosed by the record, makes a case which required the submission of the question of notice and defendant’s good faith in the transaction to the jury. The added circumstances upon which the appellant relies consist mainly in the fact that the account which the defendant had with Pell stood in his name as trustee; that he was a person of bad character, who had previously been convicted upon a criminal charge and served a term in the state’s prison. We do not think that there is anything in the fact that Pell had the account in Ms name as trustee, or that he added to his signature “trustee,” upon the note, which put defendant upon inquiry as to the infirmity of his title to the bonds. It is' well known that such accounts are frequently kept in financial institutions, where no fiduciary relation is intended or in fact exists. A variety of reasons induce persons so to carry their individual accounts, which the courts have had occasion to consider many times. If the question with respect to the form of the account in other matters had arisen between the defendant and a cestui que trust whom Pell represented, it might be that the defendant would have been put upon notice to inquire into Pell’s authority. Suarez v. De Montigny, 1 App. Div. 494, 37 N. Y. Supp. 503; Kirsch v. Tozier, 143 N. Y. 390, 38 N. E. 375. The facts, however, in connection with the opening of this account,
It follows, therefore, that thé judgment should be affirmed, with costs. All concur.