Opinion
January 22, 1937.
Appeal from the Municipal Court of City of New York, Borough of Manhattan, First District.
Sullivan Cromwell, for the appellant, respondent, The Marine Midland Trust Company of New York.
Louis P. Neustein, for the impleaded defendant, appellant, Irving M. Blum.
John J. O'Connor, for the respondent Fidelity Guaranty Fire Corporation.
The drawee, First National Bank, having paid out the money upon a forged indorsement, had no right to charge plaintiff (drawer) with such payment and upon the facts here shown plaintiff can recover the amount thereof from said bank. Plaintiff, therefore, has suffered no damage for which recovery may be had against these defendants. ( General Fire Assurance Co. v. State Bank, 177 A.D. 745; Maryland Casualty Co. v. Chase Nat. Bank, 153 Misc. 538.) Furthermore, after utterance of the checks plaintiff did not have the legal title to, or a general or special property in, or right to, the possession thereof. ( Mayer v. Kilpatrick, 7 Misc. 689.)
Judgment in favor of plaintiff against defendant Marine Midland Trust Company of New York (collecting bank) reversed, with thirty dollars costs, and judgment directed for said defendant. Judgment in favor of Marine Midland Trust Company of New York against defendant Blum reversed, with thirty dollars costs, and judgment directed for said defendant.
All concur. Present — LYDON, HAMMER and FRANKENTHALER, JJ.