135 A.D. 52, New York Produce Exch. Bank v. Twelfth Ward Bank of City of New York
|Citation:||135 A.D. 52, 119 N.Y.S. 988|
|Party Name:||NEW YORK PRODUCE EXCH. BANK v. TWELFTH WARD BANK OF CITY OF NEW YORK.|
|Case Date:||December 10, 1909|
|Court:||New York Supreme Court Appelate Division, First Department|
Appeal from Trial Term, New York County.
Action by the New York Produce Exchange Bank against the Twelfth Ward Bank of the City of New York. From a judgment on a verdict for defendant, and from an order ( 62 Misc. 69, 115 N.Y.Supp. 998) denying a motion for new trial, plaintiff appeals. Reversed, and new trial granted.
See, also, 118 N.Y.Supp. 1127.
[119 N.Y.S. 989] James E. Kelly, for appellant.
Otto C. Sommerich, for respondent.
Argued before INGRAHAM, McLAUGHLIN, CLARKE HOUGHTON, and SCOTT, JJ.
This is an appeal by plaintiff from a judgment in favor of defendant upon the verdict of a jury. Although there is no certificate that the case contains all the evidence, the exceptions are ample to raise all the questions it is necessary to consider.
The action is to recover the amount paid upon an altered check under a mistake of fact. The evidence tended to show the following state of facts: The firm of S. & W. Bauman, on November 24, 1906, drew its check on plaintiff, in favor of E. Jacob & Co., for $5.69. On December 3, 1906, that check was deposited in defendant bank to the credit of Alexander Seidman, a customer. When so deposited, the check had been raised to $2,105, the date had been altered, the name of the payee had been erased, and the name of William Seidman written in as payee, and the check indorsed by William Seidman and Alexander Seidman. The plaintiff bank paid the amount of the check, as raised, through the Clearing House, and received back the check with the following indorsement upon it, signed by defendant:
" Received payment through New York Clearing House, December 3, 1906. Indorsements guaranteed."
Under the authorities this was equivalent to a guaranty of the genuineness of the whole of the instrument, including the indorsements, excepting only the signature of the drawer, and, in case of forgery, rendered the defendant liable prima facie to refund to plaintiff the amount received on the check, on the ground that the payment had been made under a mistake of fact. White v. Continental Nat. Bank, 64 N.Y. 319,21 Am. Rep. 612; Metropolitan Nat. Bank v. Loyd, 90 N.Y. 535; Corn Exchange Bank v. Nassau Bank, 91 N.Y. 74, 43 Am...
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