91 N.Y. 106, Bank of British North America v. Merchants' Nat. Bank

Citation:91 N.Y. 106
Party Name:THE BANK OF BRITISH NORTH AMERICA, Respondent, v. THE MERCHANTS' NATIONAL BANK OF THE CITY OF NEW YORK, Appellant.
Case Date:January 16, 1883
Court:New York Court of Appeals
 
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91 N.Y. 106

THE BANK OF BRITISH NORTH AMERICA, Respondent,

v.

THE MERCHANTS' NATIONAL BANK OF THE CITY OF NEW YORK, Appellant.

New York Court of Appeal

January 16, 1883

Argued Dec. 11, 1882.

Page 107

COUNSEL

John E. Burrill for appellant. The plaintiff had a perfect remedy at law to recover from the defendant the amount of the check, which had been improperly paid by defendant, and wrongfully charged against the plaintiff. ( Welsh v. Germ. Am. Bk., 73 N.Y. 424; S. C., 1 Duer, 434.) In such action, the account stated would not have been a bar, or interfered with the recovery; it would only have been prima facie evidence, and could have been overthrown by evidence, and its only effect was to cast the onus on the plaintiff of showing its incorrectness. (Lockwood v. Thorne, 11 N.Y. 170; S. C., 18 Id . 287; Welsh v. Germ. Am. Bank, 73 Id . 423.) As there was a perfect remedy at law, plaintiff could not resort to equity for the purpose of evading the statute applicable to legal actions, or obtaining the benefit of the statute applicable to equitable actions. ( Murray v. Coster, 20 Johns. 576, 585; Bible Society v. Helard, 51 Barb. 552; Smith v. Remington, 42 Id . 75; Rundle v. Allison, 34 N.Y. 180; Kane v. Bloodgood, 7 Johns. Ch. 90; Bk. of U.S. v. Daniel, 12 Pet. 32.) A perfect cause of action accrued to the plaintiff on the 9th of March, 1870, when the check in question was accepted and paid by

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defendant, charged to the plaintiff in its account, notice thereof given to the plaintiff, and the check and pass-book-balanced, were returned to the plaintiff. ( Kingman v. Hotaling, 25 Wend. 423; Parmenter v. Simonds, 2 Bro. P. C. 43, 47; Chitty on Bills, marg. paging 515, 392, 28; Carroll v. Cone, 40 Barb. 220; Baker v. Kenworthy, 42 N.Y. 216; Pratt v. Foote, 9 Id . 463; S. C., 10 Id . 599.)Ignorance on the part of the plaintiff of the facts which established the incorrectness of the charge is immaterial. The right of action had arisen. ( Union Bk. v. Knapp, 3 Pick. 96.) The charge against the plaintiff by the defendant in the account rendered created a cause of action, and a demand was unnecessary. ( Union Bk. v. Knapp, 3 Pick. 96.) When a demand is, under the circumstances, nugatory, even though it is an ingredient of a right of action, none need be made. ( McBride v. Farmers' Bk., 26 N.Y. 450; Howard v. France, 43 Id . 593; Bk. of Missouri v. Benoist, 10 Mo. 521; Watson v. Phoenix Bk., 8 Metc. 217; Farmers' Bk. v. Planters' Bk., 10 G. & J. 422; Carr v. Thompson, 25 Alb. L. J. 92.) If a cause of action accrued to the plaintiff, as claimed by defendant, the statute of limitations began to run from that time, and when it began to run it could not be arrested or defeated by a new demand. ( Kelsey v. Griswold, 6 Barb. 436; Stafford v. Richardson, 15 Wend. 302; Allen v. Mille, 17 Id . 202; Troup v. Smith, 20 Johns. 33; Argall v. Bryant, 1 Sandf. 98; Wood v. Carpenter, 101 U.S. 135; Taylor v. S. & N. A. R. R. Co., 13 F. 152.) In a case where, by reason of delay, the bank has lost its remedy, a depositor owes a duty to the bank to examine the account rendered and the vouchers. ( Thomson v. Bank, 82 N.Y. 1-6.)

Jno. E. Parsons for respondent. The defendant was liable to pay the deposit to the plaintiff or to its order upon demand, but for the amount of the deposit an action could not be maintained until proper demand and refusal by the defendant. ( Howell v. Adams, 68 N.Y. 314; Bank of Fort Edward v. Washington Co. Nat. B'k, 5 Hun, 605; Boughton v. Flint,

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74 N.Y. 476; Phelps v. Bostwick, 22 Barb. 314; Girard B'k v. Bank of Penn. Township, 39 Penn. St. 92.) No benefit resulted to the defendant from the fact that the plaintiff did not object to the charge of the check in its pass-book. The plaintiff had the right to rely upon the genuineness of Mrs. Halpine's indorsement. ( Welsh v. German Am. B'k, 73 N.Y. 424.) The claim that the payment on the forged indorsement constituted a conversion of money of the plaintiff and so started the running of the statute is preposterous. ( Matter of Franklin B'k, 1 Paige, 249; Marsh v. Oneida Cent. B'k, 34 Barb. 298; Foley v. Hill, 2 C. & F. 28; Chapman v. White, 6 N.Y. 412; Commercial Bank of Albany v. Hughs, 17...

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