Hillsley v. State Bank of Albany

• Decision Date: 29 December 1966
• Parties: , 223 N.E.2d 571 Morton B. HILLSLEY, etc., Plaintiff-Respondent, v. STATE BANK OF ALBANY, Defendant-Appellant, and Glennon Builders, Inc., et al., Defendants-Respondents, and H. Irving Chase et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 148

277 N.Y.S.2d 148

18 N.Y.2d 952, 223 N.E.2d 571

Morton B. HILLSLEY, etc., Plaintiff-Respondent, v. STATE BANK OF ALBANY, Defendant-Appellant, and Glennon

Builders, Inc., et al., Defendants-Respondents,

and H. Irving Chase et al., Defendants.

Court of Appeals of New York.

Dec. 29, 1966.

Appeal from Supreme Court, Trial Term, Albany County.

Plaintiff in conversion action sought to recover proceeds of certified check in amount of $10,000, payable jointly to plaintiff and defendant Glennon and paid to defendant Glennon by bank, which was predecessor of defendant state bank. There was evidence that attorney for persons named Mooney had made and delivered check to defendant Birmingham, president of defendant Glennon, as a progress payment on a house which plaintiff was building pursuant to a contract with defendant Glennon, and which was to be conveyed by defendant Glennon to the Mooneys, and that check bore notation 'Re: Mooney' on its face, and that defendant Birmingham indorsed the check with plaintiff's name and deposited it in defendant Glennon's account with defendant national bank, and that at defendant Birmingham's request defendant national bank simultaneously issued two cashier's checks, totaling $10,000, which defendant Birmingham delivered to plaintiff for application to another house, which plaintiff and building under contract with defendant Glennon, and that proceeds thereof were applied to the other house, which was subsequently completed and conveyed by defendant Glennon to others, and that plaintiff thereafter learned of the forged indorsement on the certified check.

The defendant state bank asserted as a defense that plaintiff had received the proceeds of the $10,000 certified check and had suffered no damage by reason of the forged indorsement.

The Supreme Court, Albany County, Trial Term, Russell G. Hunt, J., entered a judgment for the plaintiff for $10,000 with costs and disbursements.

The Supreme Court, Appellate Division, First Judicial Department, 24 A.D.2d 28, 263 N.Y.S.2d 578, on an appeal transferred by the Supreme Court, Appellate Division, Third Department, modified, on the law and the facts, and, as modified, affirmed amended judgment of the Trial Term. The modification consisted of directing that plaintiff should have interest added to his recovery, that plaintiff should, in addition, have judgment therefor as against defendants Glennon and Birmingham, and that the cause should be remanded to the Trial Term for...