Citation Numbers: 61 Misc. 181, 112 N.Y.S. 927
Judges: Dayton
Filed Date: 11/15/1908
Status: Precedential
Modified Date: 1/13/2023
The plaintiff for his first cause of action alleges the execution and delivery by the defendant of a certain instrument described as a “ cheque.” This instrument directs the Chartered Bank of India, Australia and China at Hong Kong to pay to the individual therein named $1,800 local currency “ on presentation of this cheque from our balance.” The plaintiff further alleges that the instrument was mailed by registered letter to one Tong Sing Wo Kee at Hong Kong, but that it was not delivered to the said Tong Sing Wo Kee, but came into the possession of some other person who received payment on an indorsement of “ Long Sing Wo Kee,” at which time the said instrument was in a “ battered condition,” and that payment of a duplicate was thereafter refused by the “ Chartered Bank ” above named. The original instrument was presented on the argument, and I am asked to say, as matter of fact, from an inspection, whether it is payable to “ Tong ” or “ Long ” Sing Wo Kee. This seems to be a novel proposition. My decision as to this would, on appeal, invite the Appellate Division to exercise its knowledge as to handwriting, and that without the benefit of comparison or any testimony. It seems to me that this request may not be complied with. It is certain from the pleadings that this instrument was intended for Tong Sing Wo Kee, and was mailed to him. It reached a stranger to the transaction, and, in a more or less mutilated condition, was presented by and paid to a stranger sixty days after the date of mailing. So far as I may comment upon the appearance of the instrument, I should say that the bank was put upon inquiry, particularly if presentment was made considerably after a “ due course ” period. I think this transaction was not the sale of a chattel, but an agreement to repay at a distant point out of defendant’s balance a particular sum deposited here for Tong Sing Wo Kee with the defendant. If this instrument could be considered a chattel, then all defendant’s responsibility ended when it was delivered. Safe banking cannot be predicated upon such a theory. The defendant, however, claims that the Hong Kong Banking Law relieves the Chartered Bank from responsibility, and that the defendant is also protected by
Demurrer overruled, with leave to defendant to answer over upon usual terms.
Demurrer overruled.