
    Fidelity & Guaranty Fire Corporation, Respondent, v. The Marine Midland Trust Company of New York, Appellant, Respondent, and Irving M. Blum, Impleaded Defendant, Appellant.
    Supreme Court, Appellate Term, First Department,
    January 22, 1937.
    
      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.
   Per Curiam.

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 App. Div. 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.  