
    Philip V. Myers, Appellant, v. The Twelfth Ward Bank of the City of New York, Respondent.
    (Supreme Court, Appellate Term,
    June, 1899.)
    Banks — Promise to apply a deposit to specific checks not established — Trust.
    A specific trust upon the part of a bank to pay a check drawn upon It by a dep'ositor is not established by proof on the part of the payee that, when the maker’s agent made a certain deposit, he said to the bank teller that it was to cover checks that would be in that day and that, in response thereto, the teller “may have said ‘All right’, or nodded his head.”
    If a bank could make such an agreement, it could only be made by its executive officer.
    Appeal by the plaintiff from a judgment of the Municipal Court, first district, borough of Manhattan, rendered in favor of the defendant.
    Wm. Cleveland Cox, for appellant.
    Charles W. Dayton, for respondent.
   MacLean, J.

On April 19, 1897, the plaintiff received from one Eli Smith the latter’s check upon the defendant. The plaintiff kept the check until notified by the drawer, on Saturday, April 24th, to present it. On that day he deposited it with the Hinth Rational Bank, from which it reached the defendant through the clearing-house between 1 and half-past 1 on April 26 th. It was not paid because, as claimed by the defendant, there was served upon it before that hour, namely, between 12 and 1 o’clock, an affidavit and order for its examination as a third party in the action of Edith Hicks against said Eli Smith, and forbidding the transfer or other disposition of any property belonging to the judgment debtor. Later on, the balance standing to the credit of Smith was paid over by the defendant to a receiver appointed in proceedings supplementary to execution. The check from Smith to the plaintiff was returned with others drawn by Smith to the clearing-house by the defendant bank that afternoon. This action was brought to recover the amount of the check on the allegations “ that before and at the time said check was presented for payment, said Smith’s account at the bank was good, and that there had been deposited in said defendant bank the sum of $ , which was more than sufficient to pay said check, which deposit was made with the especial purpose of providing for said check, all of which was explained to the proper officers of the bank at the time of said deposit and to which they assented and agreed.” The plaintiff did not claim that the bank would have acted improperly in paying over the money to the receiver had this been an ordinary deposit, and providing the check was really received through the clearing-house after the service of the order for the examination and injunction, but he endeavored to make out by the testimony of a witness that the respective times stated above, and which were given by the cashier of the bank, were inaccurate. As to this, the justice must be considered as having found against him, as he rendered judgment in favor of the defendant. This is sufficient for the disposition of this appeal. The attempt of the plaintiff to impress upon the deposit above shown a specific trust to pay certain checks, including the one upon which this áction is brought, was futile. The only evidence in support of it was given by one E. D. Smith, who made the deposit. He testified: “ I told him (the teller) as I handed him the deposit that that was to cover checks that would be in that day. Q. Did he make any remark ? A. Rot that I know of. He may have said All right,’ or nodded his head. He was busy at the time. * * * That special check I did not refer to — any checks that would be in that day. There was money sufficient to cover 'any checks.” Reither the ticket which accompanied the deposit nor its entry in the depositor’s book contained any suggestion that the deposit was other than an ordinary deposit. They evidence only an ordinary transaction, familiar to all in commerce and governed by a custom well understood, a transaction in which the teller, by being, so to say, exhibited at his window, was held out by the bank as authorized on 'the one hand to receive the deposit proffered with a written statement for subsequent comparison by another employee and for entry by still another to the credit of the depositor’s account, and on the other hand to vouch for the receipt of the money by a debit to the bank in the customer’s book. It is hardly to be assumed that any other than the executive officer of the bank could bind it by the novel, or at least, unusual agreement to take a deposit to meet indefinite checks to be presented (whensoever drawn) on that particular afternoon. To show that any one, even the executive officer did so, it is needful to prove that he heard the condition professedly made by the depositor’s messenger and that is not proven by one testifying that the words were uttered at a man who was busy at the time and made no remark that the witness knew of, even though the witness - volunteered “ He may have said ‘ All right,’ or nodded his head.”

The judgment should be affirmed, with costs.

Freedman, P. J., and Leventritt, J., concur.

Judgment affirmed, with costs.  