
    William Allen, Respondent, v. Tarrant & Co., Appellant.
    
      ’Payment—check ordinarily not a payment— authm'ity of an agent to receive■ and . indorse checks, when a guestionfor the jury,.
    
    In an action brought to recover for goods sold and. delivered the defense was interposed that they had been paid for by two checks, in reference to which it ■appeared that on July 13, 1898, Harry 31. Cook, who w.as a salesman for the plaintiff, presented a statement of the amount due upon an account to the cashier of the defendant,, who gave Cook a check to the order of the plaintiff, Which was indorsed by the plaintiff and was deposited and was duly paid. On July 30, 1893, Cook came to the defendant with another bill for which he received another check and receipted the bill; when this check came back to the defendant from its bank it ivas, indorsed “ Wm. Allen & Co. H. M-. Cook.” On August ninth a similar transaction took place, and on the afternoon of that ■day Cook returned and induced the defendant’s cashier to procure the cashing by a bank of the check previously given on that day. On August 18,1893, the ■plaintiff charged Cook with the crime of grand larceny in that he had received the money represented by one of these checks; The two last-mentioned checks were paid by the bank on which they Were drawn, but the .plaintiff " never received the money, and after waiting two years brought the present action to recover it.
    Upon the trial the defendant asked to go to the jury Upon the question of Cook’s authority to receive the checks, in payment and also upon all the evidence in the-case. This request was denied by the court, which directed a verdict in favor of the plaintiff.-
    
      Meld, that while the delivery of' a check does not ordinarily operate as a payment, yet the defendant was, under all the evidence in this case; entitled to go' to the jury upon the question whether Cook was not' authorized to receive and .-indorse the checks; ■ ■
    That as the plaintiff had not repudiated the former acts of Cook in his behalf-, the defendant was to some extent justified in its belief that Cook.was authorized to accept the checks; . '
    That there was some evidence to justify .a finding that the money .received on one of the checks was lawfully in the possession of Cook as agent for the plaintiff, and that he had converted it to his own use.
    Appeal by' the defendant, Tarrant ■& Co., from' a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of December, 1895, upon the verdict óf a jury rendered by direction of the ■court after a trial at the .New York Circuit, ■ -
    The action ivas brought to.recover for goods sold and .delivered, and the defense' was payment in full by means of two checks. Upon the trial it appeared, on the question of payment, that on July 12, 1893, one Cook, who was a salesman in plaintiff’s employ, came to the defendant’s place of business and, presenting a statement of the amount due, asked the defendant’s cashier to pay the account, and that, thereupon, the latter gave Cook a check to the order of the plaintiff for the same. This check was regularly indorsed by the plaintiff for deposit and placed .in bank and was drily paid, and concerning this check there is no dispute.
    Thereafter, and on July 20, 1893, Cook again came to the defendant and for another bill obtained another check. He receipted the bill, and defendant did not see the check again until it came back from the bank the following month as paid, and indorsed “Win. Allen & Company. H. M. Cook.” On August 9, 1893, a similar transaction took place, Cook receiving in payment of a bill due the plaintiff a check from the defendant. On the afternoon of the day upon which this last check was delivered, Cook returned and stated to the defendant’s cashier that it would be an accommodation to the plaintiff and to himself if the defendant would cash the check for him. The cashier thereupon went with Cook to the Irving Bank and introduced him to the paying teller, who, after asking whether the indorsement was that of the plaintiff and receiving an affirmative answer, gave him the money.
    On August 18,1893, plaintiff made a charge against Cook in the Tombs Police Court of grand larceny of money represented by one of the checks, and in his affidavit swore-that Cook had stolen from him the following property: “ $185.12 good and lawful money of the United States, property of William Allen & Company, qf which: firm deponent is a member. * * * Deponent. is informed by George C. Hopkins that on said day he, as clerk for Tarrant & Company, paid the annexed cheek to the said Harry M. Cook for the account of William Allen & Company; as deponent never received, said check nor the money thereon, and as the same has been passed through the bank ¿n which it was drawn and the money paid thereon, and as deponent identifies the indorsement Harry M. Cook on the back of said check to be the handwriting of Harry M. Cook, and the said Harry PI. Cook has kept away from deponent and left, his place of business, deponent charges him, Harry M. Cook, with grand larceny.”
    
      The defendant proved that the checks were paid at its bank, and that no claim was made iqpón it until two years after the transaction, and then rested. The plaintiff took the stand and testified to the amount of interest due upon his demand, and that the same had not been paid, and rested, and asked the court for a direction of a verdict in his favor. The defendant asked to go to the jury upon the question of Cook’s authority to receive'the checks inpayment and upon all the evidence in the casé. The court denied the defendant’s motion and granted that of the plaintiff, to which an exception was taken.
    
      James J. Allen, for the appellant.
    
      Lilian Herbert Andrews, for the respondent.
   O’Brien, J.:

It is true that: delivery of a. cheek'is not payment, “unlessin some very special case, if such a case can be supposed, where the check was taken in- absolute payment and extinguishment of the debt.” (Thomson v. Bank of B. N. A., 82 N. Y. 8.) The delivery of a check to the principal or his authorized agent and' the subsequent payment of the same operates to discharge an indebtedness for which it is given.

The evidence here shows that the checks intended as payment of " "the indebtedness were given to: one Cook,, who was in plaintiff’s employ, and subsequently paid by defendant’s bank. Upon the questions as to whether Cook was authorized to receive or indorse them, the evidence is that prior to the giving of the checks in dispute the plaintiff, through Cook, received a check of the defendant’s which was deposited in the plaintiff’s account in bank and paid by the defendant. ' If the plaintiff had desired to disavow Cook’s action in receiving checks in settlement of accounts, then seemingly was the time to have notified defendant. Having kept silent,, and to some extent justified defendant’s belief, that Cook was authorized to accept, checks, this was some evidence bearing on the question of Cook’s authority.

There ivas in addition the evidence that plaintiff charged Cook in -a Police Court with grand larceny, and in the affidavit stated that Cook had stolen his property, viz., the proceeds of the checks. Unless he regarded Cook as his agent to receive checks, indorse them and collect the money, he could not truthfully or legally claim that the money received by Cook was his. After waiting two years, however, he assumed another and inconsistent position, and sued the defendant upon the theory that Cook was not authorized, and that the money received was not the plaintiffs.

Although plaintiff was a witness, he did not say that the indorsements of the checks were forged or that Cook was not authorized to receive or indorse them, but, relying on the presumed weakness of the evidence to support the defense, he moved to direct a verdict in his favor, which was granted, and to which defendant excepted, as it did to the denial of its motion to go to the jury on the question of Cook’s authority. These exceptions, we think, were well taken, because not only was there some evidence from which the jury could infer Cook’s authority, but there was also evidence to justify a finding that the money received on the checks was lawfully in Cook’s possession as agent for plaintiff and that he converted it to his own use.

We do not think that this case, in principle, can be distinguished from Sage v. Burton (84 Hun, 267).

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

Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  