Smith v. State Bank

Goff, J. Plaintiff was á depositor in defendant bank. One Jacob Zlotnick drew a check on said bank for nine dollars, making it payable to J. Salzman, whom he permitted to write the.check for him, Zlotnick being unable to write. Zlotnick was also a depositor in defendant bank. Salzman raised the check to ninety dollars, and then asked plaintiff to introduce him to the bank so that he could draw the money. Plaintiff took the check and asked William Walton, defendant’s paying teller, if the check was good, to which he replied “Perfectly, I believe.” Walton then told plaintiff to indorse it, which he did, and the money was paid. Upon finding that the check had been raised, the bank deducted the ninety dollars from plaintiff’s account, for which sum plaintiff now brings this action. Notwithstanding the fact that the action of Walton may have been equivalent to a certification of the check, and that plaintiff was merely an accommodation indorser, he was still “ liable on the instrument to a holder for value, notwithstanding such holder, at the time of taking the instrument, knew him to be only an accommodation party.” Neg. Inst. Law, § 55. As to certification, see Marine Nat. Bank v. Nat. City Bank, 59 N. Y. 67; White v. Continental Nat. Bank, 64 id. 316. There still remains to be considered the amount for which this-plaintiff is liable to defendant; whether for the full amount of the check or for that amount less the' sum for which the check was originally drawn. That the latter constitutes the correct measure is shown by an' authority cited by respondent in its brief. “ Where a genuine draft has been altered not only in the name, but in the amount to be payable, the difference between the original amount and the altered amount might be recovered back of the person from whom the drawee has received the draft and to whom he paid the money.” National Park Bank v. Ninth Nat. Bank, 55 Barb. 87. “ That is,” to quote from respondent’s brief, “ in this case the difference between $90 and $9 might be recovered back from the person from whom the. hank received the note, to wit, the plaintiff, and to whom it paid the money, to wit, the plaintiff.” As defendant has already “ recovered ” the eighty-one dol [552] lars and the original face value of the check - as well, the judgment herein will be modified by giving judgment absolute for the plaintiff for the sum of nine dollars, and as thus modified affirmed, with costs of this appeal. Gildersleeve and Fitzgerald, JJ., concur. Judgment modified, and as modified affirmed, with costs of this appeal. ,