132 N.Y.S. 1017 | N.Y. App. Div. | 1911
This is an action on a promissory note upon which the defendant admitted his liability, but pleaded facts on which he demanded that the amount of two checks paid'by the plaintiff and charged to his account be set Off. This defense was overruled. The liability of defendant excepting as to the amount for which he claims an offset has been adjusted, and the single question remaining in the action and presented by the appeal is whether the defendant was entitled to have the amount of the checks deducted from his liability on the noté.
The appellant was a private banker, conducting business in the city of New York, and for a long time he had been accustomed to purchase claims of officers of the United States army. for'their salaries to grow due in the future, and to take assignments of their vouchers therefor. He had a drawing account with the plaintiff, and the checks which were charged tó his account, and the amount of which he seeks to offset herein, were drawn and dated on the 16th day of September, 1907. One was for $900, payable to the order of “ Lieut. Col. Frederick Marsh,” and the other was for $526.50, payable to the arder of “ Oapt. J. A. Shipton.” The Marsh check was
The appellant was not personally acquainted with either Lieutenant-Colonel Marsh or Captain Shipton, and had had no business transactions with either of them; but, in due course of mail, he received a letter under date of September 11, 1907,
The primary question to be considered is whether Lieutenant-Colonel Marsh and Captain Shipton of the United States army were the respective payees of the checks, or whether the appellant intended to make the individual with whom he had the correspondence the payee thereof. I am of opinion that only one inference may be drawn from these uncontroverted facts, and that is that while the appellant erroneously believed that his correspondent was Lieutenant-Colonel Marsh, he did not determine that question and reasonable care did not require that he determine it. His suspicion had not been aroused and while he had no reason to doubt who the writer was, he fully protected himself by addressing his correspondence in the name of the official with the official title prefixed, and by making the checks payable to the officials by their respective titles of office. The appellant did not personally deliver the checks and thus pass on the identity of the payee. He transmitted them by mail, so addressed that without violating the law they could not be received and opened by any one other than the army officers, and made the checks out in such form that they could not be collected by any one other than the army officers, without the commission of the crime of forgery, and failure on the part of the person or corporation cashing them in the first instance to require proper identifica
It follows, therefore, that the judgment and order should be reversed, with costs, and, since most of the material facts are shown by documentary evidence, which is incapable of being changed and it is not claimed that any material fact could be changed by a new trial, the complaint should be dismissed, with costs.
Ingraham, P. J., and Clarke, J., concurred; Scott and Miller, JJ., dissented.
Judgment and order reversed and complaint dismissed, with costs. '