98 N.Y.S. 561 | N.Y. App. Div. | 1906
This action is brought by the Oriental Bank to recover from, the defendant, its depositor, the amount of a check deposited by the latter in the hank, upon the ground that the indorsement immediately prior to that of the defendant is a forgery. •
The check is the check of the Brooklyn Savings Bank, drawn upon the Nassau National Bank, certified by the latter and indorsed to the order of Antonio Copa, purporting to be indorsed by. Antonio Copa, .and then indorsed by the defendant: On the deposit of the check by the defendant with the Oriental' Bank, the plaintiff, the amount of the check was credited to the defendant’s account, and in due course the check was ^aid to the plaintiff through the 'clearing house by the Nassau National Bank, the indorsement being guaranteed in accordance with custom.
The depositor, Antonio Cona, was a witness on the trial. It was proved beyond dispute that he was not the person to whom
The plaintiff was not obliged to allow the suit brought against it by the Nassau Natioiial Bank to proceed to judgment before making the payment which it did. In making such payment it did only what it could have been compelled to do, assuming that the disputed signature was a forgery. The signature proving to: be a forgery, such payment is not to be regarded as voluntary in any' sense which -would operate to relieve the defendant from -his liability to restore the money which he received from the plaintiff upon his implied guaranty of the genuineness -of the forged indorsement.
The judgment and order'must be affirmed.
Woodward, Jenks and Hooker, JJ., concurred; Gaynor, J., concurred in result.
Judgment and order affirmed, with costs.