Hagen v. Bowery National Bank

Gilbert, J. The defendant certified the check in question as being good. The plaintiff took the check in the ordinary course of business, for valué and in good faith. There is nothing shown to impeach his title. The check turned out to be a forgery. It cannot be questioned that the bank is liable to make good its certificate by paying the check. (Farmers and Mechanics’ Bank v. Butchers and Drovers’ Bank, 26 How. Pr. 1. Price v. Neal, 3 Burr. 1354. Com’ l &c. Bank v. First Nat. Bank, 30 Md. 11.) The principle upon which this liability rests is stated by Holt, Ch. J., in Hern v. Nichols, (1 Salk. 289,) namely, that “seeing somebody must be a loser by this deceit, it is more reason that he that confides in the deceiver should be a loser, than a stranger,” and has become an established rule' of law in cases identical with this. Whether the endorsement purporting to be that of the payee named in the check was genuine or not, or whether the person so named was a fictitious person, imperfectly appears. But it is immaterial whether it was one or the other. There can be no real payee of a forged instrument. As between the plaintiff and the bank, the [191] liability of the latter attached upon the check being certified. And as it is impossible to make title to money payable upon a forged check, through an endorsement thereof, proof of the genuineness of the endorsement is unnecessary for that purpose. The evidence shows that the person from whom the plaintiff received the check went by the name endorsed thereon, and that the endorsement was made by him. This is quite sufficient to protect the plaintiff against any imputation of negligence or bad faith in taking the check. [First Department, General Term, at New York, November 4, 1872. Leonard and Gilbert, Justices.] The advertisement of the forgery not having been brought home to the plaintiff can have no effect whatever, upon his right to recover. (Raphael v. Bank of England, 17 C. B. 161.) For the reasons stated, we are of opinion that the judgment should be affirmed, with costs. Leonard, J., concurred. Ingraham, P, J., did not sit. Judgment affirmed.