Clark v. Nat'l Shoe & Leather Bank of New York

Decision Date20 November 1900
Citation58 N.E. 659,164 N.Y. 498
PartiesCLARK v. NATIONAL SHOE & LEATHER BANK OF CITY OF NEW YORK.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, appellate division, Second department.

Action by John W. Clark against the National Shoe & Leather Bank of the city of New York to recover the sum of $1,950 alleged to be due plaintiff on his deposits in defendant bank. From a judgment of the appellate division (52 N. Y. Supp. 1064) unanimously affirming the judgment of the trial court without a jury in favor of plaintiff, defendant appeals. Affirmed.

Jmaes L. Bishop, for appellant.

O. B. Gould, for respondent.

LANDON, J.

To sustain his cause of action, the plaintiff gave evidence tending to prove that 21 of the many checks which he drew against his deposits in the defendant's bank had been intrusted to his bookkeeper, one Lamothe, who, by fraudulent alterations before presentation to the bank, raised them above the amounts for which they were drawn, and that the bank paid them to the bookkeeper at their increased amounts, and so charged them to the plaintiff, and that the aggregate of such fraudulently increased amounts was the sum of $1,950. The account extended from February 11, 1895, until October 10, 1896. The plaintiff discovered the fraudulent alterations, or some of them, about July 27, 1896, and immediately notified the defendant. Prior to such notice the defendant had balanced the plaintiff's account according to its own books, and entered the balance thus found in plaintiff's pass book, and returned the book ot his bookkeeper, Lamothe, together with the paid checks and a slip showing the amounts charged to the plaintiff upon each check and the aggregate amount. The plaintiff caused his pass book and returned checks and the bank slip of checks paid to be examined, soon after their return from the bank, by an expert, one Luff, who reported the account to him to be correct. The plaintiff's theory was that Lamothe so altered the checks, pass book, and the footings of the bank slip after their return as to deceive the expert. The defendant insists that the negligence of the plaintiff in the examination of the accounts stated precludes his recovery. The trial court found that he was not negligent. The unanimous affirmance by the appellate division withdraws from our review the evidence upon which this finding is based, and there is no other finding of fact inconsistent with the finding of negligence. We cannot review the finding. The defendant urges that a proved and uncontradicted fact, which, however, the trial court did not find, conclusively established the plaintiff's negligence. No exception presents this omission or refusal, and we therefore cannot review it. Harrow Co. v. Bement, 163 N. Y. 506, 57 N. E. 764.

The defendant urges that, apart from the question of the plaintiff's negligence, the failure of the plaintiff to object to the accounts stated by the bank within a reasonable time made such stated accounts conclusive. The trial court found ‘that on or about the 27th day of July, 1896, the plaintiff discovered the said forgeries, and notified the defendant thereof with due diligence.’ This is not a finding that the plaintiff did not object within a reasonable time. Taken in connection with the further finding, that the plaintiff ‘was in no way negligent’ in his examination of the account stated, it imports that the plaintiff did object within a reasonable time. The question which the defendant seeks to present is not before us. A question for review does arise upon the defendant's exceptions to the admission of evidence. It was important for the plaintiff to show the true amounts for which the altered checks had been drawn. Because of the alterations in the checks themselves, this could not be determined by inspecting them. Lamothe, the bookkeeper, was not produced. The plaintiff testified that 19 of the 21 checks were made as follows: His bookkeeper, usually every Saturday, presented him with a statement upon a pad of the amount of the pay roll furnished by the superintendent, and an itemized statement of the office expenses. The plaintiff added these items, stating the total sum upon the pad, handed it to his bookkeeper, and directed him to draw a check for the whole amount. The bookkeeper then went into another room, entered the statement and its amount in the cash book, drew a check for the whole amount, presented the check to the plaintiff for signature, together with the statement upon the pad. The plaintiff compared the amounts of each,...

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10 cases
  • Bendett v. Bendett
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 30 Noviembre 1943
    ... ... 319 (1782). Union Bank ... v. Knapp, 3 Pick. 96, 109. Burns v. Fay, 14 ... L. R ... 1, and note; Santarpio v. New York Life Ins. Co. 301 ... Mass. 207 , 210), the ... Howard v. McDonough, ... 77 N.Y. 592. Clark v. National Shoe & Leather Bank, 164 ... N.Y ... ...
  • City of Niagara Falls v. New York Cent. & H.R.R. Co.
    • United States
    • New York Court of Appeals Court of Appeals
    • 4 Octubre 1901
    ...N. Y. 52, 56 N. E. 548;Kleiner v. Railroad Co., 162 N. Y. 193, 56 N. E. 497;Lawrence v. Church, 164 N. Y. 115, 58 N. E. 24;Clark v. Bank, 164 N. Y. 498, 58 N. E. 659. In Meserole v. Hoyt, Judge O'Brien (at page 61, 161 N. Y., and page 274, 55 N. E.), speaking for the court, as to the questi......
  • People v. Caprio
    • United States
    • New York Supreme Court — Appellate Division
    • 14 Marzo 1966
    ...745.) In the case at bar, an interval of 26 or 28 hours would not, of itself, bar Thomashefsky's confession (cf. Clark v. National Shoe & Leather Bank, 164 N.Y. 498, 58 N.E. 659). The defendant complains that there is no guaranty of the accuracy of the confession. He points to Thomashefsky'......
  • Smith v. New York Cent. & H. R. R. Co.
    • United States
    • New York Court of Appeals Court of Appeals
    • 20 Noviembre 1900
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