Stein v. Empire Trust Co.

BIJUR, J. This action was brought to recover from the defendant the amount of a credit of $75 entered in plaintiff’s passbook upon deposit of 'a check. Plaintiff alleged and proved that he had demanded the payment of the amount from the defendant and it had been refused. The answer alleges that the indorsement of the payee on the deposited check was forged, and that the defendant, by subsequent indorsement, warranted the genuineness of the payee’s indorsement. It does not allege, either that the defendant was unable to collect the amount of the check, or that, though collected, it was compelled to repay the same to the maker, or to an intermediate bank. On. the pleadings and proofs, therefore, plaintiff had received a credit of $75 against his deposit with defendant, for collection, of a third party’s check for the same amount; and defendant made no attempt to prove, either that it had failed to collect the check, or that, when collected, it had been compelled to repay the amount. The case of Oriental Bank v. Gallo, 112 App. Div. 360, 98 N. Y. Supp. 561, cited by respondent, therefore, has no application, as in that case the very facts, of which defendant in the case at bar offered no proof, appeared and are set forth in the opinion. I am cited to no case, and I know of none, in which a depositor, having made out a prima facie case of indebtedness to himself by putting in evidence a credit entered on his pass book with a bank, can have his recovery thereon defeated by proof only of the fact that there was a forged indorsement on the deposit which formed the basis of the action, and without any evidence by the bank that it has in any manner been prejudiced or damaged thereby. No adequate defense having been pleaded or proved, the judgment must be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.