
    The Spring Brook Chemical Company, Plaintiff, v. George W. Dunn, as Receiver of the Merchants' Bank of Binghamton, N. Y., Defendant.
    
      Insolvent firm —• its receipt of two drafts aggregating more than its claim — its title is fraudulent to the extent of the excess—proof that a bank is a bona fide holder for value. ' ^
    A firm, to which two drafts for §1,225.98 and $1,018.81 respectively are tendered in satisfaction of an overdraft upon it of §1,749.79, with a request that the balance of §495 be placed to the sender’s credit, may properly receive the larger draft without disclosing its insolvent condition, but is bound to make such disclosure as to the smaller draft, part of which is, in effect, a loan, and its failure to do so renders its title to the smaller draft fraudulent to the extent of the sum of §495.
    The fact that the firm could not divide the smaller draft so as to repay the sender the §495 does not alter the case.
    Proof that a bank received the smaller draft from the firm and credited it on its books in payment of ai^ existing indebtedness due to it from the firm, does not, in the absence of proof that it was expressly agreed between the firm and the bank that the draft should be received in payment and extinguishment of the firm’s debt, establish that the bank was a bona fide holder for value of the draft, in view of the rule that the burden is upon a bank claiming to be a bona tide holder for value to establish all the facts necessary to give it that character.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code- of Civil Procedure.
    In this case the plaintiff claimed from the defendant the sum of $495, being a part of the proceeds of two drafts, one for $1,225.98, the other for $1,018.81, which the plaintiff had deposited with the firm of Ross & Sons in payment of an overdraft of $1,749.79.; or that the defendant indorse said sum of $495, upon a note of $2,000 held by him, as a payment of such note.
    
      Charles S. Hall, for the plaintiff.
    
      H. D. Hinman, for the defendant.
   Parker, P. J.:

The first question to decide is whether the firm of Ross & Sons acquired any title to the drafts in question.

The transaction was in effect as follows: Plaintiff offered two drafts to the aggregate amount of $2,244.79 in satisfaction of its overdraft of $1,749.79, and asked that the balance of $495 be put to its credit in its account with the firm. To the extent of that $495 it was in the nature of a loan, to be repaid on demand by the firm, and lienee the obligation was imposed, on the firm, not to take such a loan without disclosing its insolvent condition. So far as either draft taken by it was to be applied in satisfaction of plaintiff’s debt, it was well taken ; but when either draft, or any part of it, was to be received as a loan, then it was fraudulently taken. The firm was not excused for receiving part of the amount of the draft as a loan because the other part was offered to them in satisfaction of the debt. Their right to receive, without disclosing their condition, extended only to the amount of their debt against plaintiff. It was their duty, therefore, either to take the drafts and pay to the plaintiff so much thereof as was not needed to satisfy the overdraft, or else to decline to receive. In other words, they are not excused for defrauding the plaintiff out of $495 by the claim that they could not divide the draft. If they could not divide it, they should have told the plaintiff the truth and given it an opportunity to divide.

I conclude that title to the larger draft was acquired by the firm, because it was tendered in satisfaction of plaintiff’s debt, and the firm might well receive it without disclosing its financial condition to its debtor. But as to the other, the title was fraudulently acquired, 'because the firm had no right to receive it or any part of it as a loan "without making such disclosure. (Cragie v. Hadley, 99 N. Y. 131, 135 ; Grant v. Walsh, 145 id. 502.)

But the question remains, whether the Merchants’ Bank is to be considered a bona fide holder for value of such draft; and first, was it a holder for value ?

It appears in the statement of facts that the Merchants’ Bank received such draft and applied and credited it in payment of an indebtedness then existing from Ross & Sons to it; and that such draft was deposited by Ross & Sons with the bank for such purpose. If we may fairly assume that there was an express agreement between the depositor and the bank that such draft should be received in payment and extinguishment of the debt to that extent, the bank would then stand in the position of a holder for value. (Mayer v. Heidelbach, 123 N. Y. 332.) But it is held in Phœnix Ins. Co. v. Church (81 N. Y. 221) that the intent to receive paper in absolute discharge and satisfaction of a debt may not be inferred from the ordinary transaction of accepting and receipting it in payment or crediting it on account. And the question arises whether it appears from the submission that anything more than that was done in this case. That there was such an express agreement between the depositor and some officer acting for the bank who had authority to make it is not distinctly stated, and, as we have seen, it may not be inferred even though the bank did take and credit it as payment on its books. It is manifest that the bank parted with nothing on the credit of this draft, unless'it had made a distinct and binding obligation to discharge a like amount of its debt against Ross & Sons in exchange for it. In view of the rule that the burden is with a bank claiming to be a tona fide holder for value, to establish all the facts necessary to give it that character (Grant v. Walsh, 145 N. Y. 502, 506), I conclude that the facts before us do not show that the Merchants’ Bank was a holder for value of the draft in question.

Such being the case, the plaintiff may reclaim the draft from the bank to the same extent that it could reclaim it against Ross & Sons. (Grant v. Walsh, 145 N. Y. 502.)

In this case the plaintiff does not ask to reclaim the whole amount of the draft, but only that portion thereof as to which it was actually defrauded, and in my judgment it is entitled to judgment for that amount.

All concurred.

Judgment directed in favor of the plaintiff.  