
    Henry Clews et al., App’lts, v. Bank of New York National Banking Association, Resp’t.
    
      (Court of Appeals,
    
    
      Filed April 19, 1887.)
    
    1. Banking—Certified draft—When altered.
    On the trial of an action upon an altered draft, certified by defendant, but the payment of which had been ordered stopped by the maker, after such certification, plaintiff’s counsel stated in opening that he expected to prove that before taking the draft, plaintiff asked defendant’s teller if the certification was good, and was answered “ yes,” after careful examination by him; that he expected to prove that it was the usage of banks in the city of New York for the teller to compare the draft with the entry in the certification book and with the book of stopped payments, and that lie did not do this, and that according to the usage the question related not merely to the marks of certification, but to the draft as certified. Whereupon the judge dismissed the complaint, on motion of defendant. Held, error.
    2. Same.
    
      Held, that without regard to the admissibility of evidence of usage, the plaintiffs had a right, under the circumstances offered to be proved, to go to the jury on the question whether the inquiry made of the teller was understood by the parties as referring to the validity of the certification at the time it was exhibited to the teller, or only to the genuineness of the marks of certification, and also on the question whether it was culpably negligent, under the circumstances, to answer the question without referring to the certification book and the book of stopped payments, which referred to the draft in question by its number, and would have disclosed the fraud.
    3. Same—Appeal—Divided court.
    When the court is divided, as it was on the first appeal, and the majority concur simply for reversal, it is not safe to treat anything as having been adjudicated, except the precise point in respect to which error in the judgment of the court below was made to appear.
    4. Same—Complaint dismissed on opening of counsel.
    Where a complaint is dismissed on the opening of counsel, all the facts referred to in his opening, or offers of proof, should be considered, including facts not stated in the complaint, unless objection to proof of such additional facts is made, on the specific ground that it is not admissible under the pleadings.
    The Commercial National Bank of Chicago, on the 6th day of January, 1879, sold and delivered to one Wirt Dexter a draft on the defendant for $254.50, and numbered 73,436. The draft was presented to the paying teller of the defendant at its banking house in New York city on the 15th day of January, and by him stamped, “Certified, Bank of New York, N. B. A.,” to which he added his signature, “Meany.”
    On February 10, 1879, the said Commercial National Bank of Chicago, having previously written to defendant, requesting it to stop payment on said draft, wrote to the cashier of defendant, stating that the draft had been indorsed and sent to the indorsee, but had not been received, and again requested the defendant to stop payment of the draft which you say you have certified. The defendant thereupon instructed its paying teller not to pay the draft. On the twenty-fifth day of February, a draft, drawn by the Commercial National Bank of Chicago upon the defendant, bearing the number 73,436, but payable to the order of plaintiffs, for the sum of $2,540, was offered at the office of the plaintiffs in payment for certain bonds, which the person presenting the said draft proposed to purchase. The draft bore the marks of certification before mentioned. Thereupon plaintiffs sent a messenger to the defendant’s banking-house with the draft, and presented it to the paying teller, in behalf of the plaintiffs, and asked him if the certification of the said draft was good. At the time this question was asked of the teller, the bank had a book, kept within ten feet of his desk, in which was kept a list of certifications, and opposite the entry which related to draft No. 73,436 was a memorandum: “Stop payment, see letter February 10, 1879.” The paying teller also had a book in which he made, or caused to be made, the entry that payment of draft No. 73,436 had been stopped. The paying teller carefully examined the said draft, both face and back, and, without comparing the same with his books, answered “Yes.” Thereupon, the plaintiffs took the draft in good faith, and delivered bonds and money to the amount of the face of said draft. On the fourth day of March, 1879, the draft was presented to the defendant, which refused payment thereof, and so wrote on the face of it. The plaintiffs again demanded payment on March fifth, and, on a second refusal, brought this action.
    On the trial the plaintiffs had judgment, which was affirmed by the general term. On appeal to this court, a new trial was granted, and, on the new trial, the complaint was dismissed after plaintiffs had opened. The judgment was affirmed by the general term, and the plaintiffs again appeal to this court.
    
      Esek Cowen and Abbot Bros., for app’lts; Wheeler H. Peckham, for resp’t.
   Rapallo, J.

When this case was first-before us (89 N. Y., 420), it came up on an appeal by the defendant from a judgment rendered, in favor of the plaintiffs, on a verdict in their favor. That judgment was reversed, and necessarily, there having been manifest error in the charge of the judge, who instructed the jury, in substance, that, if the draft was presented to the teller of the defendant, and he answered the question of the messenger who presented it in the manner testified to by the messenger, the plaintiffs were entitled to recover. That instruction was, in effect, a charge that, if the messenger asked the teller whether the certification was good, and the teller answered in the affirmative, that answer of itself, as matter of law, rendered the defendant liable. Under that charge the jury were relieved from considering the circumstances proved upon the trial, and from construing the import of the question and answer, and were constrained to render a verdict for the plaintiffs, provided they believed the testimony of the messenger as to the answer which he received. They were not called to pass upon any of the questions arising upon the evidence, as to the notice which the bank had received in relation to the draft, and the entries relating to it contained on its own certification-book and book of stopped checks, nor upon any question of negligence on the part of the teller in failing to refer to the books mentioned. The charge held that the statement of the teller that the certification was good constituted in itself, as matter of law, an absolute estoppel upon the defendant, which precluded it from disputing its liability upon the certification, for the full amount or the draft as raised subsequent to the certification, without reference to ' any other question. This a majority of the court held to be error. It by no means follows, however, that that decision established that the defendant was absolutely exempt from liability, and could not be held responsible, even if the defendant, at the time the teller said that the certification was good, had notice that it had ceased to be good by reason of the subsequent alteration of the draft, or had in its possession the means of ascertaining that fact, and the jury should find that it was guilty of culpable negligence, under the circumstances, in omitting to resort to those means of information, and thus misled the plaintiffs to their injury. That is an entirely different question from the one which was adjudicated on the former appeal.

On the trial now under review the plaintiffs did not rest upon the teller’s answer alone, which on the first trial was erroneously held to be, of itself, sufficient to make the defendant liable. They sought to go further, and to show that, before answering the question, the teller examined the whole of the "draft, both face and back, and everything upon it. It bore plainly on its face the number 73,436. The complaint stated the facts relating to the history of the draft, and the notice to the defendant that a, draft bearing that number had miscarried, and requesting the defendant to stop payment of it, and the other facts set forth in the report of this case on the first appeal (89 N. Y., 420); and on the last trial the counsel for the plaintiffs opened the case, stating fully these facts, and,_ after a motion to dismiss on the complaint and opening, the counsel made a further opening, stating that he expected to prove that, in the ordinary usage of banks in the city of New York, it was the duty of the teller, under the circumstances of this case, before answering the question asked of him, to compare the draft with the entry in the certification book, and with the book of stopped payments, and the entries made therein, which identified the draft by its number, 73,436, and that the teller was guilty of gross negligence in answering the question without first making the comparison; also that, according to the usage, the question asked the teller in this case related, not merely to the marks of certification, but to the draft as certified; and he also asked to go to the jury on the question whether the teller examined the whole draft, and whether his answer referred to the draft as certified, or to the marks of certification only. After this further opening, the defendant’s motion to dismiss the complaint was granted, and the plaintiffs’ request to go to the jury denied; and the plaintiffs’ counsel excepted.

We think that the court erred in thus dismissing the complaint. Without regard to the admissibility of evidence of usage, the plaintiff had a right, under the circumstances offered to be proved, to go to the jury on the question whether the inquiry made of the teller was understood by the parties as referring to the validity of the certification, at the time it was exhibited to the teller, or only to the genuineness of the marks of certification, and also on the question whether it was culpably negligent, under the circumstances, to answer the question without referring to the certification book and the book of stopped payments, which referred to the draft in question by its number, and would have disclosed the fraud. It was promptly discovered on the following day, when the draft was presented for payment. Neither of these questions was necessarily involved in the case as presented to us on the first appeal. The judgment then under review could not have been sustained on the ground that the jury might have found for the plaintiffs on the two questions now referred to, and the reversal of the judgment cannot therefore be regarded as an authoritative decision that they, were not proper for the consideration of the jury. When the court is divided, as it was on the first appeal, and the majority concur simply for reversal, it is not safe to treat anything as having been adjudicated, except the precise point in respect to which error in the judgment of the court below was made to appear, which in this case was that the judge charged the jury, as matter of law, that, if they found that the question whether the certification was good was asked of defendant’s teller, and answered as testified to by the messenger, the plaintiffs were entitled to recover. That this charge was erroneous is all that was necessarily decided on the first appeal,

The counsel for the respondent now makes the point that, in reviewing the decision dismissing the complaint, we must consider only the facts stated in the complaint itself, and that the further facts referred to in the opening of the counsel, and in his offers of proof, cannot be considered. We do not think this .point tenable. Where a complaint is dismissed on the opening of counsel, all the facts referred to in his opening, or offers of proof, should be considered, including facts not stated in the complaint, unless objection to proof of such additional facts is made on the specific ground that it is not admissible under the pleadings. No such specific objection appears to have been made. If it had, it might have been met by an amendment of the complaint if necessary.

The judgment should be reversed, and a new trial ordered; costs to abide the event.

Rtjger, Ch. J., Andrews, Danforth and Finch, JJ„, concur; Earl, J., not voting; Peckham, J., not sitting.  