156 N.Y.S. 474 | N.Y. App. Div. | 1915
Lead Opinion
Plaintiff, claiming as owner of a check indorsed to his order, upon which his signature was forged, sues defendant into
We consider that upon the evidence as it comes before us, it must be held that Wolfin became the owner of the check. Section 60 of the Negotiable Instruments Law (Consol. Laws, chap, '38; Laws of 1909, chap. 43) provides as follows: “ An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to bearer it is negotiated by delivery; if payable to order it is negotiated by the indorsement of the holder completed by delivery.” And section 2 of the same act provides: “ ‘Delivery ’ means transfer of possession, actual or constructive, from one person to another.”
Here there was no actual delivery to Wolfin, but there was, as we think, a constructive delivery. Such a delivery has been
Applying these principles to the case at bar it seems clear that Wolfin became the owner of the check when the maker intrusted it to Litt for delivery to plaintiff. Up to that moment, so far it appears, the check had not become negotiable, for although drawn to Litt’s order, it had not been transferred to him in such manner as to constitute him the owner thereof.
Until the indorsed check was delivered to Litt for the sole purpose of delivering it to Wolfin, the maker retained domination and control over it. The transfer which under the statute was necessary to impart negotiability to the check was the delivery to Litt for the sole purpose of delivery to plaintiff.
Why the maker adopted the form of drawing the check to Litt’s order and causing him to indorse it we do not know and need not inquire. It is significant that it was never transferred to Litt for the purpose of constituting him the holder and owner thereof. It is of no consequence that Litt was the maker’s agent to make delivery to Wolfin. It may be that Wolfin need not have elected to assert ownership to the check, and might have preferred to resort to the original debt which the check represented. The fact is that he elected to accept and stands on the transfer to himself.
It really is of no consequence to defendant whether it pays the
The determination appealed from is affirmed, with costs.
Clarke and Dowling, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.
Dissenting Opinion
I think when Bergman, the maker of the check, made it payable to the order of Litt, Litt became the holder of the check. He indorsed it in the presence of the drawer of the check to the order of the plaintiff, and the drawer then instructed him to deliver the check to the plaintiff. If the drawer of the check wished to pay the sum of money to the plaintiff, there is no explanation why he went through this process of drawing the check to Litt, instead of directly to the plaintiff. Litt, being the payee of the check and having it in his possession, had authority as to third parties to obliterate the direction to pay to the plaintiff and transfer it to a third party, who would then have a good title to the check. If instead of thus obliterating the name of the plaintiff, he signed the plaintiff’s name, and then as owner of the check transferred it to the defendant, I do not see why the defendant would not acquire title to the check. Plaintiff never had possession of the check. It might be, as stated in the prevailing opinion, that if the drawer of the check had delivered it to a third party for delivery to the plaintiff, that would be a constructive delivery which would justify the plaintiff in maintaining the action, but it was delivered, not to a third party, but to the payee.
In Worth v. Case (43 N. Y. 362) it was stated that where the instrument is delivered, not to the person to whom it is payable, hut to a third party for the benefit of the plaintiff, it will be held that that constituted a valid and binding delivery as against the party who delivered it, and, as between the maker of the check and the plaintiff, the law would hold that the
In this case the plaintiff served a bill of particulars. It was there alleged that the check was indorsed, pay to the order of the plaintiff, by the payee; that after the check was so indorsed, the drawer of the check handed it to Litt, with authority and with instruction to deliver it to the plaintiff; that the said Litt did not deliver the check to the plaintiff, but converted the same to his own use; that Litt forged or caused to be forged the name of the plaintiff on the back of said check; that said check so forged was presented by said Litt to one Grossman and said Litt obtained from the said Grossman the sum of $450 in payment of said check, and that thereafter and on September 23, 1914, two days after the check was drawn, the said Grossman deposited said check with the defendant, and on that day defendant collected and received the proceeds of said check from the bank upon which it was drawn. There was no evidence to contradict these allegations in the bill of particulars and the defendant proved that it réceived the check from Grossman in good faith for deposit, collected the check, and paid the amount thereof to Grossman.
I think, therefore, on the face of the instrument, Litt being the payee, had authority to dispose of the check to a bona fide holder for value in good faith, and it is entirely inmaterial who signed the plaintiff’s name on the check, so long as it was actually negotiated by Litt, who received the proceeds, and that, therefore, the plaintiff could not recover the amount of the check from the defendant.
It follows that the judgment should be reversed.
Laughlin, J., concurred.
Determination affirmed, with costs.