White v. Mechanics' National Bank , 4 Daly 225 ( 1871 )

By the Couet.^*—Robinson, J.

—There is no question made by the pleadings as to the original title of the plaintiffs as payees of the checks, for the conversion of which this suit -is brought.

It is averred, in the answer, that they were so drawn; and it is claimed that they were, by the general indorsement of the plaintiffs, duly transferred to the defendants, the Camden & Amboy Railroad and Transportation Company, in the regular course of business and for full value, which company received them in good faith, and deposited them with the Mechanics’ National Bank for collection. That bank caused them to be presented to the bank on which they were drawn, and collected them.

The title of the plaintiffs to the checks was evidenced by their being made payable to their order, as well as by proof of the transactions in which they were given as payment. If any error had occurred in receiving in evidence the receipts of their collecting agent as part of the res gestes, it was wholly immaterial, as the original ownership of the checks by the plaintiffs, as to which the testimony had any bearing, is not questioned by the pleadings.

The proof showed the alleged indorsement by the plaintiffs (through which title to and authority to collect the amount of these checks was claimed by. the defendants) was a forgery, but it is claimed by each defendant that neither a joint nor several action for the conversion of the checks can be maintained against them. This position is not tenable. Each defendant has dealt with these checks in derogation of plaintiffs’ title, claiming through the forgery, and they have by their concurrent action made a conversion of the checks, and realized therefrom their full amount. Although the bank does not appear to have acted in any other capacity or under any other claim than as collecting agent for the railroad company, it is equally liable for its acts on behalf of a principal who could confer no such authority. Both defendants have contributed to the same injury, and are to render but a single satisfaction (Thomas v. Ramsey, 6 Johns. 26). Even without this community of interest, where a party has wrongfully obtained possession of goods, and has transferred them to another, both parties may be joined in an action for the wrong (Nichols v. Michael, 23 N. Y. 264).

The plaintiffs had their election either to sue in trover, as for conversion, or to recover the amount in an action for money had and received (Talbot v. Bank of Rochester, 1 Hill, 295).

They elected the former remedy, and are entitled to judgment in their favor for the amount of the verdict, with interest and costs.

Judgment on the verdict, with interest and costs.

* Present, Daly, Oh. J., Robinsoíí and L arremore, JJ.