Mulligan v. Harlam
46 Misc. 571
N.Y. App. Term.
1905
Check Treatment
O’Gorman, J.

Action to recover $1,200, the amount of a check made by plaintiffs to the defendant at the instance *572of one Kelly, who secured the check on the delivery to the plaintiffs of a note made by Kelly for that amount, and bearing the forged indorsement of the defendant. At the solicitation of Kelly, the defendant indorsed the check, passed it through his bank and it was paid by the plaintiffs’ bank in due course. There was judgment for the plaintiffs, and the sole question presented is whether the trial justice erred in excluding evidence tendered by the defendant as to Kelly’s conversation with him at the time of the presentation of the check, and as to the defendant’s subsequent delivery of the $1,200 to Kelly. The case under the proof is simply a case of money had and received. The defendant received plaintiffs’ money without consideration and in- consequence of the fraud of a third person. The plaintiffs had a right.to its immediate return. It is no defense that the defendant cannot be restored to his original position. Kingston Bank v. Eltinge, 40 N. Y. 399. Evidence of defendant’s good faith would be admissible only if suit were brought without previous demand. Sharkey v. Mansfield, 90 N. Y. 227. As a demand was made, that question did not arise and defendant’s exception to the exclusion of this evidence is unavailing.

Scott and Blanchard, JJ., concur.

Judgment affirmed, with costs.