57 N.Y.S. 100 | N.Y. App. Div. | 1899
The first question to decide is whether the firm of Ross & Sons acquired any title to the drafts in question.
The transaction was in effect as follows: Plaintiff offered two
I conclude that title to the larger draft was acquired by the firm, because it was tendered in satisfaction of plaintiff’s debt, and the firm might well receive it without disclosing its financial condition to its debtor. But as to the other, the title was fraudulently acquired, 'because the firm had no right to receive it or any part of it as a loan "without making such disclosure. (Cragie v. Hadley, 99 N. Y. 131, 135 ; Grant v. Walsh, 145 id. 502.)
But the question remains, whether the Merchants’ Bank is to be considered a bona fide holder for value of such draft; and first, was it a holder for value ?
It appears in the statement of facts that the Merchants’ Bank received such draft and applied and credited it in payment of an indebtedness then existing from Ross & Sons to it; and that such draft was deposited by Ross & Sons with the bank for such purpose. If we may fairly assume that there was an express agreement between the depositor and the bank that such draft should be received in payment and extinguishment of the debt to that extent, the bank would then stand in the position of a holder for value. (Mayer v. Heidelbach, 123 N. Y. 332.) But it is held in Phœnix
Such being the case, the plaintiff may reclaim the draft from the bank to the same extent that it could reclaim it against Ross & Sons. (Grant v. Walsh, 145 N. Y. 502.)
In this case the plaintiff does not ask to reclaim the whole amount of the draft, but only that portion thereof as to which it was actually defrauded, and in my judgment it is entitled to judgment for that amount.
All concurred.
Judgment directed in favor of the plaintiff.