173 N.E. 923 | NY | 1930
Peter J. Schweitzer, of whose last will the plaintiff is executrix, on November 5, 1917, paid the defendant $2,059.74, and took from it two drafts, one for 10,000 rubles payable to his sister Lea Margolin, and the other for 5,000 rubles payable to his sister Gissia Garbowitzka. The drafts were drawn by the defendant on "Azow Don Commerz Bank, Petrograd, Russia," in which the defendant then had on deposit more than 15,000,000 rubles. The drafts were intended by Schweitzer as gifts to his sisters, who lived at Ekaterinoslav, in southern Russia, about 1,000 miles distant from Petrograd. The drafts, forwarded by Schweitzer, were received by his sisters on or about December 1, 1917. At this time the Azow Don Commerz Bank at Petrograd had been closed and its assets seized by the Soviet government. The sisters made no presentment of the drafts at Petrograd for the reason that all rail connection between that city and Ekaterinoslav had been cut off, and neither *63 travel nor mail communication between the two cities was possible. They made presentment at a branch bank of the "Azow Don" at Ekaterinoslav, but payment was refused. In December, 1921, the sisters returned the drafts to the plaintiff, as the executrix of the will of Peter Schweitzer, then deceased, by whom they were in due course received. They likewise notified the defendant to make payment to the plaintiff. This suit was thereupon brought, not to recover upon the drafts, as if the payees had transferred their interests therein to the plaintiff, but to obtain restoration of the moneys paid in procurement of the drafts, as upon a total failure of consideration.
There have been instances where persons, having paid over moneys and received in return promissory notes payable to third persons, who thereafter refused to accept and discount the notes, have had recoveries in suits upon the instruments brought in their own names. (Sutherland State Bank v. Dial,
A person who pays moneys to a bank and receives in return a draft drawn by it upon a correspondent bank, has frequently been termed a purchaser of the draft. (Gravenhorst v. Zimmerman,
It has been said that "Under this head may also properly be included the class of cases in which it has been held that the vendor who sells bills of exchange, notes, shares, certificates and other securities, is bound, not by the collateral contract of warranty, but by the principal contract itself, to deliver as a condition precedent that which is genuine, not that which is false, counterfeit or not marketable by the name or denomination used in describing it." (Benjamin on Sales [4th Am. ed.], § 607.) (See, also, Meyer v. Richards,
The judgment should be affirmed, with costs.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN, O'BRIEN and HUBBS, JJ., concur.
Judgment affirmed.