Clews v. Bank of New York Nat. Banking Ass'n
| Decision Date | 19 April 1887 |
| Citation | 105 N.Y. 398,11 N.E. 814 |
| Parties | CLEWS and others v. BANK OF NEW YORK NAT. BANKING ASS'N. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
On the sixth day of January, 1879, the Commercial National Bank of Chicago sold and delivered to one Wirt Dexter a draft on the defendant for $254.50, and numbered 73,436. On the fifteenth day of January the said draft was presented to the paying teller of the defendant at its banking-house in New York city, and, by the use of the defendant's regular perforating stamp, marked ‘Certified Bank of New York N. B. A.,’ to which words the signature of the paying teller, ‘MEANY,’ was appended.
Prior to the tenth day of February, 1879, the Commercial National Bank of Chicago sent the defendant a letter or message requesting it to stop the payment of said draft. On the said tenth day of February, 1879, the said Commercial National Bank of Chicago wrote to the cashier of the defendant, stating that the draft had been indorsed and sent to the indorsee, but had not been received, and again requesting the defendant to stop payment of the certified draft. The defendant thereupon instructed its paying teller not to pay the said draft. On the twenty-fifth day of February, a draft, drawn by the Commercial National Bank of Chicago upon the defendant, bearing the number 73,436, but payable to the order of the plaintiffs, and for the sum of $2,540, was offered at the office of the plaintiffs in payment for some bonds, which the person presenting the said draft proposed to purchase. The said draft bore the same marks of certification above mentioned. Thereupon, the plaintiffs sent a messenger to the defendant's banking-house with the draft, and the same was presented to the paying teller, and the plaintiffs' messenger, in behalf of the plaintiffs, asked the teller if the certification of the said draft was good. At the time this question was asked, the bank had a book, kept within 10 feet of the paying teller's desk, in which was kept a list of certifications, and opposite the entry which related to draft No. 73,436 was a memorandum: ‘Stopped payment, see letter February 10, 1879.’ The paying teller also had a book in which he had made, or caused to be made, the entry that payment of draft No. 73,436 had been stopped. The paying teller, on being asked if the certification was good, carefully examined the said draft, and everything upon it, and, without comparing the same with his books of certification and ‘stopped payments,’ answered that such certification was good. Thereupon, the plaintiffs took the draft in good faith, and delivered, in exchange therefor, bonds and money to the amount of the face of said draft. On the fourth day of March, 1879, the said draft was presented to the defendant, which refused payment thereof, and wrote on the face of it: ‘Certified January 15, 1879, for $254.50; payment stopped.’ The plaintiffs again demanded payment on March 5th, and, on a second refusal, brought this action.
A demurrer to the complaint was interposed, which was sustained at the special term, but overruled at the general term. The defendant then answered, and on the trial the plaintiffs had judgment, which was affirmed by the general term. On appeal to this court, a new trial was granted, and, on the new trial, the complaint was dismissed, as before stated, on the pleadings, and the opening of the plaintiffs. The judgment of the trial court was affirmed by the general term, and the plaintiffs again appealed to this court.
Esek Cowen and Albert A. Abbott, for appellants.
Wheeler H. Peckham, for respondent.
When this case was first before us (89 N. Y. 420) it came up on an appeal by the defendant from a judgment rendered, in favor of the plaintiffs, on a verdict in their favor. That judgment was reversed, and necessarily, there having been manifest error in the charge of the judge, who instructed the jury, in substance, that, if the draft was presented to the teller of the defendant, and he answered the question of the messenger who presented it in the manner testified to by the messenger, the plaintiffs were entitled to recover. That instruction was, in effect, a charge that, if the messenger asked the teller whether the certification was good, and the teller answered in the affirmative, that answer of itself, as matter of law, rendered the defendant liable. Under that charge the jury were relieved from considering the circumstances proved upon the trial, and from construing the import of the question and answer, and were constrained to render a verdict for the plaintiffs, provided they believed the testimony of the messenger as to the answer which he...
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De Vito v. Katsch
...Court in Oscanyan v. Arms Co., 103 U.S. 261, 26 L.Ed. 539, with similar expressions by Judge Rapallo in Clews v. Bank of N.Y. Nat. Banking Assn., 105 N.Y. 398, 11 N.E. 814, and Judge O'Brien in Hoffman House, New York v. Foote, 172 N.Y. 348, 65 N.E. 169, supra. Although there were earlier, ......
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