Peerrot v. Mount Morris Bank

104 N.Y.S. 1045 | N.Y. App. Div. | 1907

Laughlin, J.:

The plaintiff had an account with the defendant. The complaint contains two counts. The first is to recover the sum of $843.09, paid by- the defendant to' an employee of the plaintiff On a check drawn by one Budolph Oelsner upon the National Shoe and Leather Bank, which plaintiff alleges was indorsed by him “for the purpose of depositing said check to the credit of ” his account, but which the defendant wrongfully and negligently paid in cash,to One Murmann, -Iiis messenger. And the second is to recover the-sum of $2,174.25, the amount of-a check drawn by the same party upon the same bank, and alleged to -have been indorsed by plaintiff for the purpose of depositing said. check to the credit- of his account, but which the defendant likewise wrongfully arid negligently paid to his said messenger. The defendant, in its -answer, admits the status of the parties, and that it did not deposit the jiroeeeds of the check to the credit of plaintiff’s account, but it denies' the other material allegations of the complaint. For a separate defense to each of the causes of action the defendant separately further alleges that the messenger who presented the checks to it .was plaintiff’s cashier; that the checks were payable to the order of plaintiff, and indorsed by him and by his cashier, who requested the defendant to pay the checks in cash, and' that it complied with'such request. The demurrer to each separate defense is upon the ground that it • is insufficient in law upon the face thereof. It is-to'be inferred from the points for the' appellant, that the theory of the, deinurrer was that the defendant .had, by the denials contained in its answer, put in issue the charge that the moneys were' negligently paid to plaintiff's messenger, and that no new issue was presented by the alleged separate defenses, and, therefore, the facts. interposed as separate defenses are not new matter constituting a defense or counterclaim. (Code Civ. Proe. § 500.) The learned counsel for the appellant argues that, for the purpose of determining the sufficiency of the separate defenses,-the allegations of the complaint to the effect that the moneys were wrongfully and negligently paid are to be deemed admitted, since neither separate defense repeats the denials. Assuming, without deciding, that the rule on that subject invoked by the plaintiff is applicable to this case, it does not follow that the demurrer was improperly overruled, for even though the alleged defense be insufficient, a demurrer thereto will notlie unless the complaint sets forth a good cause of action." The plaintiff, as has been seen, in each cause of action merely alleges that he indorsed the check “ for the purpose of depositing” it to the credit of his account, and he makes' the bald charge that the defendant “ wrongfully"and negligently ” paid the amount thereof to his messenger, without setting forth any facts tending to show that the payment was wrongfully or negligently made. It is quite clear that the allegation that the payment was wrongfully and negligently made is a conclusion of law. It is not alleged that the checks were indorsed inform for deposit, or that plaintiff, through his messenger or otherwise, informed the defendant that he indorsed the checks with a view to having the proceeds thereof deposited to the .credit of his account. Upon the mere allegation that plaintiff indorsed the checks the presumption would be that he wrote his name across the back thereof, which would constitute an indorsement in blank. (1 Daniel Neg. Inst. [5th ed.] 628 ; 2 Pars. Notes & Bills, 18.) Such indorsementmade the checks payable to bearer, arid the defendant, in the absence of notice of a limitation upon .the authority of the holder, was justified in paying the amount of the checks to the plaintiff’s messenger.

It follows, therefore, that the interlocutory judgment should be affirmed, with costs.

Patterson, P. J., McLaughlin, Houghton and Scott, JJ\, concurred.

Judgment affirmed, with costs.