226 A.D. 530 | N.Y. App. Div. | 1929
Plaintiff sues in conversion on twelve causes of action. In each one it alleges that the defendant American Exchange Irving Trust Company, with which it had an account, converted moneys by the payment of plaintiff’s funds to the payee of a specific check upon a forged indorsement. The defendants appeal from orders granting motions for summary judgment for the full amount sued for.
The orders appealed from were properly made, except in so far as they relate to the second, fifth and eleventh causes of action. As to these causes of action I think a severance should be ordered and a trial had. The confessed forger, in an affidavit submitted on behalf of the defendants, states that he paid to the payee of the check involved in the second cause of action the entire proceeds of that check, $142.30; that he similarly paid to the payee the entire proceeds of the check involved in the eleventh cause of action; and that out of the proceeds of the check involved in the fifth cause of action he paid $100 to the payee named in that check. The defendant American Exchange Irving Trust Company is equitably entitled to claim credit for these payments. Shipman v. Bank S. N. Y. (126 N. Y. 318), relied on by the respondent, is not an authority to the contrary. There the forger had been guilty of
As to these three causes of action a question of fact is raised. The orders and judgments appealed from should, therefore, be modified in accordance with this opinion, and as so modified affirmed, without costs.
Finch, Merrell, Martin and O’Malley, JJ., concur.
Orders and judgments modified as directed in opinion and as so modified affirmed, without costs. Settle orders on notice.