115 N.Y.S. 503 | N.Y. App. Div. | 1909
This is an action to recover the sum of $5,000, the proceeds of a check drawn by one .E. E. Thomas, on his account with the defendant to the order of the Central Life Securities Company and deposited with defendant to the credit of that company on the 10th day of December, 1906, pursuant to an agreement between Thomas, the securities company and the. defendant, by which it was not to be subject to the check -of the securities company or to become its property until the happening of a certain event which has not transpired. Thomas was an officer of the defendant and the securities company had no other account with it and no other funds were deposited to its credit. On the 22d day of April, 1907, the securities company drew a check to the order of the plaintiff on the defendant for the amount of this fund. The check was signed for the securities company by Birch F. Bhodus, its president, and by its treasurer, and at the same time it was indorsed for the plaintiff by Bhodus, its president, to the order of defendant for the purpose of opening an account with defendant in the name of the plaintiff. Bhodus then inclosed the check with a letter to defendant, signed by him as president of the securities company, with
I am of opinion that the cases of Oddie v. Nat. City Bank (45 N.Y. 735) and Kirkham v. Bank of America (165 id. 132), relied upon by respondent, are not controlling. In those cases the intention to give the credit and create the relation of debtor and creditor was regarded as clear. In the former case the cheek was credited to a customer in the usual course of business and the customer .relied upon it to his prejudice. As the check was upon itself the bank could readily have ascertained whether or not the account upon which it was drawn was good, and the account was in fact good after the presentation of the check and on the same day, and
It is fairly to be inferred from the evidence that Thomas was
One question presented for decision is, whether there was any evidence tending to show that plaintiff had notice or knowledge of the conditions upon which the account of the securities company with the defendant was opened, for it is quite clear that the conditions upon which the account was opened were imposed for the benefit of Thomas, and that the defendant had no right, without his consent, to pay any part of the fund to the securities company until the conditions were complied with. The conditions were not complied with, and compliance therewith was not waived by Thomas. The securities company, therefore, could not have compelled the defendant to pay over the fund to it, and if plaintiff had actual or constructive knowledge of the facts which deprived
There is another ground which, I think, is fatal to this judg
It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Patterson, P. J., McLaughlin, Houghton and Scott, JJ., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event.