
    William T. Holt and William D. Gaillard, Doing Business under the Firm Name of Holt & Gaillard, Appellants, v. Colonial Trust Company, Respondent.
    
      Payments from the court fund—order directing payment to one as administrator of a designated estate—a check directing payment simply to him as administrator should not be paid.
    
    Where an order made in an action directs the chamberlain of the city of New York to make certain payments to “ Ophelia B. Barber, as Administratrix, and Edgar L. Benjamin and Theodore H. Spratt, as Administrators of the goods, chattels and credits of Olin M. Barber, deceased, or Thomas G. Prioleau, their attorney,” a trust company, holding the fund out of which the payments are to be made, is justified in refusing to honor a check made by the city chamberlain payable to the order of “ Ophelia B. Barber, as administratrix, & Edgar L. Benjamin & Theodore H. Spratt, administrators, or Thos. G. Prioleau, z atty.”
    Appeal by the plaintiffs, William T. Bolt and another, doing business under the firm name of Holt & Gaillard, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the defendant, entered on the 9th day of May, 1904.
    
      
      William D. Gaillm'd, for the appellants.
    
      O. V. Nella/ny,. for the respondent.
   Willard Bartlett, J.:

This action was brought upon the following check drawn by the chamberlain of the city of New York:

“New York, Deo. 18,1903.
“ Northfield Building vs. Barber. ( No. 172.
“No. 1.
“ Colonial Trust Company.
“ In pursuance of an order in the above entitled cause, made by Supreme Court and bearing date the 5th day of Dec. 1903, Pay .to the order of Ophelia B. Barber, as administratrix, & Edgar L. Benjamin & Theodore H; Spratt, administrators, or Thos. G-. Prioleau, atty., seventy five and 14/100 dollars.
'“$75.14. ' E. R. L. COULD,
“ OhamberlainP

Payment of this instrument was refused by the defendant corporation upon the ground that it was not drawn in accordance with the terms of the order of the Supreme Court referred to in the instrument. An examination of that order shows such to have been the fact. The order directed the city chamberlain to make payment to “ Ophelia B. Barber, as Administratrix, and Edgar L. Benjamin and Theodore II. Spratt, as Administrators of the goods, chattels and credits of Olin M. Barber, deceased, or Thomas Gr. Prioleau, their attorney.” The check omits to characterize the first payees as administrators of Olin M. Barber, or any other particular person. It also omits to describe the second or alternate payee as their attorney.

I think that these omissions justified the Colonial Trust Company in refusing to pay. Before making payment its officers were entitled to require that the check should be drawn in accordance with the order of the Supreme Court; indeed - it was their duty not to pay in the absence of conformity with such order. Although it is unlikely that any harm would have been done by honoring this check in this particular instance, it might very well happen in some cases that the same person would be an administrator of different estates, and confusion would arise unless in checks of this character, based upon an order describing the payee as the administrator .of a particular estate, that esta'te were indicated in the check itself. It seems to me that the defendant is deserving of praise rather than censure for insisting upon a strict compliance with the terms of the order before making payment out of a fund which it held as a depositary of court money.

These views make it unnecessary to decide whether the Municipal Court was correct in holding that the check was a non-negotiable instrument, and, therefore, that the plaintiffs had failed to make out a case because they had not proved any consideration. The nonconformity of the check with the terms of the order was enough to entitle the defendant to prevail.

It was error, however, to render judgment for the defendant on the merits. The defendant introduced no evidence, and the case was one in which the plaintiff had simply failed to make out a cause of action. The judgment should, therefore, be modified so as to direct the dismissal of the complaint, but not on the merits; and as thus modified affirmed, without costs of this appeal to either party.

All concurred.

Judgment of the Municipal Court modified so as to direct the dismissal of the complaint, but not on the merits; and as thus modified affirmed, without costs of this appeal to either party.  