124 N.Y. 324 | NY | 1891
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This is not a creditor's bill to establish a lien, or to remove an obstacle to the collection of a debt, but a strict action at law to recover a definite sum of money from the defendant. It does not involve the right of the plaintiff to proceed against the executors, or to collect the debt that he represents out of any interest which the judgment debtor may have in his father's estate. In order to recover in this action the plaintiff was bound to show that when the third-party order was served upon the defendant, it had in its possession or under its control certain personal property then belonging to the judgment debtor, or that it then owed him a debt exceeding ten dollars in amount. (Code Civ. Pro. §§ 2441, 2468 and 2469; McCorkle, as Recr., v.Herrman,
Such a check, as was said by the Supreme Court of the United States in a recent case, "is simply an order which may be countermanded and payment forbidden by the drawer at *332
any time before it is actually cashed." (Florence Mining Co. v.Brown,
The rule is otherwise when the check or order is drawn upon a particular fund which is specified, but that has no application to this case, because the check in question was in the ordinary form and was drawn upon no particular or specified fund. There was no transfer, therefore, by the executors to the judgment debtor of any part of their claim against the bank, and the plaintiff had no title upon which to found this action unless it was derived from some source other than the executors. Even if the judgment debtor, after the delivery of the check to him, could have compelled the executors to pay it, still he could not have compelled the bank to pay it, because there was no contract between him and the bank, and no assignment of any interest in the contract between the executors and the bank. The holder of an ordinary check, unaccepted and uncertified, cannot compel payment from the bank upon which it is drawn, even if the account of the drawer is sufficient to meet it when presented. Under such circumstances the right of action belongs to the drawer or creditor of the bank and not to the holder who is merely a stranger. (Viets v. Union National Bank,
The courts below proceeded to judgment upon the theory that the moneys were deposited by the executors as the property of the estate, and upon the apportionment between the legatees became impressed with a trust in favor of the judgment debtor. In support of this position certain cases were relied upon which hold that a bank dealing with the agent of a disclosed principal, who not only owned the moneys deposited, but held the check of the agent therefor, could not refuse to pay such check. (VanAlen v. American National Bank,
As was said in Fletcher v. Sharpe (
There had been no accounting by the executors when the receiver was appointed, and it was not yet time for them to account, as less than a year had passed since the will was admitted to probate. All the property of the testator, by force of the will, vested in the executors in trust for the benefit of the legatees. While the judgment debtor had a general claim to one-fourth of the net residuary estate, he had no title to any specific part, nor to the proceeds of any specific part, and his claim could not be enforced until after the time for an accounting had arrived. Prior to a judicial determination that all the debts of a testator have been paid, made after proper notice, all payments to legatees are at the peril of the executors, for the assets of an estate are held by them primarily for the benefit of creditors. The apportionment and distribution made by the trustees, as already appears, conferred no right upon the legatees, except as checks were given in performance *334 and the checks conferred no right that was capable of enforcement against the bank.
Without considering any of the other points urged upon us, we think that the plaintiff, according to the record now presented, had no title to the debt against the defendant, created by the deposits of the executors. It follows that the judgment should be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment reversed.