Citizens' National Bank v. Importers & Traders' National Bank , 9 N.Y. St. Rep. 201 ( 1887 )

Brady, J.

(dissenting :

The plaintiff is a foreign corporation, as appears from its title, and the defendant was its correspondent and depository here. Several drafts or checks drawn in favor of Win. C. Wadsworth & Oo. were not paid, it was alleged, and which having reached the plaintiff, this action was commenced to enforce their payment. The defense interposed was payment, and upon this issue the trial proceeded. The drafts and their indorsement by the payees were put in evidence and proved, except three or four of the latter, which were said not to have been made by any one of the payees firm, but by whom the witness knew not. The. same person was called to show presentment and demand of the drafts after they had been returned to the plaintiff, and that payment was refused because it was claimed to have been made, and it sufficiently appeared that they had been returned to the plaintiffs by the defendant as vouchers relating to the fund on deposit. The complaint, on these facts, was dismissed.

It does not seem to be questioned that the whole conversation which took place at the time of presentation was properly received in evidence, and' it could not well be. The rule is established by a series of cases (Bearss v. Copley, 10 N. Y., 93; Perego v. Purdy, 1 Hilt., 269; Bouse v. Whited, 25 N. Y., 170, and cases cited), and payment having thus been asserted, it was deemed, therefore, to have been proved prima, facie. The appellant is understood to contend, however, that the defendant being a depository, and having confessedly money enough to pay the drafts, the right of action existed and the burden of proof of payment therefore rested upon the defendant. This would convert the action' into one for money had and received, and not for the non-payment of drafts duly issued and presented. This is regarded as an erroneous proposition. If the action had been as suggested, the proof would have been different and undoubtedly forced the defendant to show why the claim urged was not satisfied. The plaintiff would establish a demand by showing the deposit and resting, and the evidence of what took place at the presentation of the drafts would not have appeared on the plaintiff’s case. The defendant would then have been called upon to establish the proper appropriation of the fund m its possession, which had belonged to the plaintiff, and would not have been relieved by the statement mentioned. The plaintiff, by adopting a different course, exposed its rights to such defeat as the statement would accomplish, and assumed the duty of showing it to be untrue. This obligation was not discharged, and the result was prejudicial. The evidence amounted to the plea of confession and avoidance. It is said, however, that the drafts which were shown not to have been indorsed by the payees were not valid vouchers, or properly paid, and as to these the right to recover was clear; but this does not seem to be a good legal proposition. It has been declared that a check or draft on a bank payable to a person named, or ‘order, may be transferred by parol, with manual delivery and without indorsement (Freund et al. v. Imp. and Trad. Nat. Bank, 76 N. Y., 352), although the transferee acquires only the rights he would have had, had the check been nonnegotiable; that is, the right which the payee had in it at the time of the transfer. The payees on these drafts had an undisputed right to the sums named on them, for they are alleged in the complaint to have been drawn for value received. There is no evidence, except such as-might be inferred from the manner of the indorsement, that they were improperly transferred, no testimony showing that they were not, in fact, transferred by parol and manual delivery. The presumption is that they were. The witness mentioned did not regard the indorsements as made by either of the persons constituting the firm of the payees; he did not know in whose handwriting the indorsements were made. This is the extent of the evidence of the subject, and it does not touch the integrity of a parol transfer with manual delivery. They may have been indorsed by the rightful owner on authority given for that purpose, or by some authorized person, in order to give them surer currency. There was no right of action based upon the improper indorsement asserted in the complaint or developed by the evidence of the payees, that wrong had been done them; assuming the indorsement not to have been made, the fact is immaterial. In addition to this, it may be said that the plaintiff substantially asserted the validity of the transfers made by asking for the payment of the drafts and predicating its action upon their soundness as choses in action.

For these reasons, it becomes our duty to affirm the judgment.

Judgment reversed, new trial ordered, costs to appellant, to abide event.