90 N.Y. 530, Metropolitan Nat. Bank v. Loyd

• Docket Number: .
• Citation: 90 N.Y. 530
• Date: 15 December 1882
• Parties: THE METROPOLITAN NATIONAL BANK OF NEW YORK, Respondent, v. WILLIAM LOYD, Appellant.
• Court: New York Court of Appeals Court of Appeals

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90 N.Y. 530

THE METROPOLITAN NATIONAL BANK OF NEW YORK, Respondent,

v.

WILLIAM LOYD, Appellant.

New York Court of Appeal

December 15, 1882

Argued Oct. 27, 1884.

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[Copyrighted Material Omitted]

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COUNSEL

C. Van Santvoord for appellant. The book credit, on its entry according to the custom of the bank on entering the check on deposit, would be incipient orinchoate, and not a standing credit until the money should be collected. ( Germ. Am. Bk. v. Third Nat. Bk., 18 Alb. L. J. 252-254.) By the suspension of proceedings and failure of the bank and the countermand of the payment under the circumstances, the provisional credit came to naught, and any right of the bank as holder for collection for account of Murray was put an end to. (Morse on Banks and Banking [2d ed.], 302.) The deposit of the check as such, by reason of the receipt by Murray of a voluntary credit of the amount as cash in his pass-book, was not a deposit of money, the deposit being made in a course of dealing between the bank and Murray, by which the check on non-payment was to be returned and the credit canceled but a deposit of the check, as a specific security. ( Thompson v. Giles, 2 B. & C. 422; 9 E. C. L. 127; Giles v. Perkins, 9 East, 12-14; Parke v. Elliason, 1 Id . 544; Jombart v. Woolet, 2 M. & C. 390; Kip v. Bk. of N.Y. , 10 Johns. 63; Thompson v. Perkins, 3 Mason, 232, 235; Biebinger v. Contl. Bk., 99 U.S. 143; Germ. Am. Bk. v. Third Nat. Bk., 18 Alb. L. J. 252-254; Montgomery Co. Bk. v. Albany City Bk., 7 N.Y. 459-460; Scott v. Ocean Bk., 23 Id . 289; Dickerson v. Wasson, 47 Id . 439; Shipsey v. Bowery Nat. Bk., 59 Id . 485, 490.) The circumstances of the deposit and receipt of the check by the bank at Troy, and of its course of business in dealing with like checks when deposited by its customers, repel any conclusion of its being either deposited or received as money for which the bank would be responsible absolutely on and from the deposit. ( Scott v. Ocean Bank, 23 N.Y. 289; Dickerson v. Wasson, 47 Id . 439-441; Shipsey v. Bowery

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Nat. Bk., 59 Id . 490.)The Merchants and Mechanics' Bank not being the owner, but the holder only, of the check for collection for account of Murray, and there being nothing in the state of the account between the bank and Murray to warrant it, its transmitting the check for its account to the plaintiff, to be applied as a credit on the former's prior indebtedness, was a wrongful diversion and appropriation to its use of the check. ( Comstock v. Hier, 73 N.Y. 273, 274; Woodhull v. Holmes, 10 Johns. 231; Murray v. Burling, Id . 172; Wardell v. Howell, 9 W. R. 170; Small v. Smith, 1 Denio, 583; Turner v. Treadway, 53 N.Y. 650; Weaver v. Barden, 49 Id . 286; Evans v. Kyrer, 1 B. & A. 528; Cranch v. White, 1 Bing. N. C. 414; Jones v. Fort, 9 B. & C. 764; Moore v. Ryder, 65 N.Y. 438.)

Fisher A. Baker for respondent. Plaintiff's title to the check in suit was good. ( Grocers' Bk. v. Penfield, 69 N.Y. 502; Comstock v. Hier, 73 Id . 269; Ex parte Thompson, 1 M. & M. A. 102.) By the deposit in the Merchants and Mechanics' Bank, and the acceptance of the bank's acknowledgment of indebtedness, the title to the check vested in the bank. (Story on Bailments, § 88; Keene v. Collins, 1 Metc. [ Ky.] 415; Brahm v. Adkins, 77 Ill. 263; Clark v. Merchants' Bk., 2 N.Y. 383; Foley v. Hill, 2 H. of L. Cas. 28; Matter of Franklin Bank, 1 Paige, 249; Chapman v. White, 6 N.Y. 412; Carroll v. Cone, 40 Barb. 220; Marsh v. Oneida Bk., 34 Id . 298; Ætna Nat. Bk. v. Fourth Nat. Bk., 46 N.Y. 82; Atty.-Gen. v. Contl. L. Ins. Co., 71 Id . 331; Com. Bk. of Albany v. Hughes, 17 Wend. 94; Downes v. Phoenix Bk., 6 Hill, 297; Marine Bk. v. Fulton Bk., 2 Wall. 256; Jordan v. Nat. Shoe & Leather Bk., 74 N.Y. 473; Scammon v. Kimball, 92 U.S. 369; Phelan v. Iron Mountain Bk., 16 Nat. Bk. Reg.; Matter of Franklin Bk., 1 Paige, 254; Chapman v. White, 6 N.Y. 412; Bk. of Republic v. Millard, 10 Wall. 152; Pott v. Clegg, 18 M. & W. 328; Stuyvesant Bk. v. Nat. Mechs'. Bkg. Assn., 7 Lans. 203; Nat. M. Bk. v. Peck, 127 Mass. 301; Story on Agency, § 228, n. 3; Morse

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on Banking, 424 [last ed.]; Van Amee v. Bk. of Troy, 8 Barb. 316; Grant on Banking, 175; Ex parte Thompson, 1 M. & M. A. 102; Thompson v. Riggs, 5 Wall. 680; Bent v. Puller, 5 Term R. 496; Ex parte Clutton, 2 Fonblanque, 167; Giles v. Perkins, 9 East, 12; Thompson v. Giles, 2 B. & C. 422.)

OPINION

DANFORTH, J.

The question turns upon the character of the transaction between Murray and the Troy bank, and although the appellant's case has been presented with more than usual ingenuity, we find no reason to doubt the correctness of the answer given to the question by the referee, and concurred in by the General Term, after an opinion by one of its learned judges (25 Hun, 101), which so fully reviews the evidence and the authorities, that we should be content with simply expressing our concurrence, if the case had not been sent here by that court as involving a question of law...