82 N.Y. 1, Thomson v. Bank of British North America

Citation:82 N.Y. 1
Case Date:September 21, 1880
Court:New York Court of Appeals

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82 N.Y. 1

WILLIAM THOMAS THOMSON et al., Respondents,



New York Court of Appeal

September 21, 1880

Argued Jun. 7, 1880.

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[Copyrighted Material Omitted]

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John E. Parsons for appellant. Where authority is conferred to do a particular thing, authority is implied to do

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every thing necessary to accomplish it. (Story on Agency [8th ed.], § § 58, 73, 85, 87, 97, 127, n. 2 and 1.) Where it is the intention of parties that commercial paper shall make payment, the debt is paid. (2 Daniel's Neg. Inst. 542; Smith v. Miller, 43 N.Y. 171; Herring v. Sanger, 3 Johns. Cases, 71.) The certification of the check by the Merchants' Bank operated not only like an acceptance of a bill of exchange, in making the Merchants' Bank primarily liable, but as to the defendant it was equivalent to the payment of the check, and absolutely discharged it. ( Robson v. Bennett, 2 Taunt. 388; Willets v. The Phenix Bank, 2 Duer, 121; The Farmers and Mechanics' Bank v. The Butchers' & Drovers' Bank, 4 Id . 219; S. C., 14 N.Y. 623; Meads v. Merchants' Bank, 25 Id . 143; Merchants' Bank v. State Bank, 10 Wall. 603; Cooke v. State National Bank of Boston, 52 N.Y. 97; First National Bank of Washington v. Whitman, 4 Otto, 343; Marine National Bank v. National City Bank, 59 N.Y. 67, 71; Freund v. Importers & Traders' National Bank, 76 Id . 352; First National Bank of Jersey City v. Leach, 52 Id . 350; 1 Daniel on Neg. Ins. 395; Bracken v. Willing, 4 Call. [ Va.] 288.) No matter who presented the check for certification, the effect of certification as to the drawer is the same. ( Freund v. Importers & Traders' National Bank, 76 N.Y. 352.) It is not necessary that a person should be entitled to demand and receive payment of a check in order to enable him to procure it to be certified. ( Freund v. The Importers & Traders' National Bank, 76 N.Y. 352.) Plaintiffs would not be barred in an action against the Merchants' Bank on this check, because the statute of limitations only runs from the presentation of a check for payment. ( Merchants' Bank v. State Bank, 10 Wall. 605.)

Samuel Hand for respondents. Under an authority either to receive or pay out a precise amount of money, the receipt or payment of any larger or smaller sum is not authorized. (Story on Agency, § § 171, 180.) The statute of limitations does not begin to run until demand. ( Downs v. Phenix

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Bank, 6 Hill, 297; Payne v. Gardiner, 29 N.Y. 146; Boughton v. Flint, 74 Id . 476.)The payment by the Merchants' Bank upon a forged indorsement would be no defense to that bank. ( Morgan v. N.Y. State Bank, 11 N.Y. 404; Graves v. American Exchange Bank, 17 Id . 205; First Nat. Bank v. Whitman, 94 U.S. 343; Talbot v. Bank of Rochester, 1 Hill, 295.) The bond and mortgage signed by Mrs. Halpine could not and did not operate as a discharge or satisfaction of the defendant's liability to the plaintiffs. ( Atlantic Dock Co. v. New York, 53 N.Y. 64; Muller v. Eno, 14 Id . 605; Young v. Stahelin, 34 Id . 258.) The receipt of a check did not operate as a payment of the defendant's debt; and the plaintiffs had a right to demand payment of the original debt from the defendant, without having recourse to the check. ( Bradford v. Fox, 38 N.Y. 239; Turner v. Bank of Foxlake, 4 Abb. Ct. App. 434; Graves v. American Exchange Bank, 17 N.Y. 205; White v. Sweeny, 4 Daly, 223.) The power to collect money or debts does not include the power to indorse paper received in payment. ( Murray v. East India Co., 5 B. & Ald. 204; Hogg v. Snaith, 1 Taunt. 347; Graham v. U.S. Sav. Inst., 46 Mo. 126; Holtsinger v. Nat. Com. Exchange Bank, 1 Sweeny, 64; 6 Abb. [ N. S.] 292; Millard v. Bank Republic, 16 Alb. L. J. 54.) The mere fact that a person claiming to be the agent of the payee of a check has the same in his possession does not confer upon him an apparent authority to receive payment thereon. ( Doubleday v. Kress, 15 N.Y. 410, reversing 60 Barb. 181; Wardrop v. Dunlop, 1 Hun, 325.) There has been no such delay or acquiescence on the part of the plaintiffs as to constitute any bar to their claim. ( Weisser v. Denison, 10 N.Y. 68; Life Assoc. v. Siddal, 8 DeGex, F. & J. 58, 74; Perry on Trusts, § § 849, 851.) The proof of certification implies and the law presumes, from the fact that a check was given, that a deposit account was kept with the Merchants' Bank. ( White v. Ambler, 8 N.Y. 170.) In the absence of proof to the contrary it is presumed that the relations of depositor and banker continued between the defendant and the Merchants' Bank down to the

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time of the trial. ( Koenig v. Steckel, 58 N.Y. 475; Hassin v. Hubbard, 55 Id . 465; Wilkins v. Earle, 44 Id . 172; Cooper v. Dederick, 22 Barb. 516.)Solvency is always presumed, especially in favor of a bank. ( Hart v. Hoffman [Ct. App.], 44 How. 168; Potter v. Merchants' Bank, 28 N.Y. 641, 655; Walrod v. Ball, 9 Barb. 271.)


Had it appeared in this case that the certification of the check given by the defendant to the plaintiffs was obtained by the plaintiffs or their authorized agent, or that the claim of the defendant upon the Merchants' Bank had been barred by the statute of limitations before the plaintiffs notified the defendant of the forgery, and demanded payment from it, there would be great difficulty in affirming this judgment. Ordinarily, where the payee or holder of a check which is payable immediately, instead of demanding payment procures the check to be certified, the check is as between the drawer and...

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