
    Irving Rines, Respondent, v. The New York & Brooklyn Brewing Co., Appellant.
    (Supreme Court, Appellate Term,
    November, 1904.)
    Action for money had and received by defendant’s agent — Acceptance by plaintiff of agent’s check for surplus payment, does not discharge defendant.
    Plaintiff’s assignor owing defendant $750 gave a check for $900 to defendant’s agent and took from said agent his personal check for the balance. The agent’s check being dishonored, plaintiff sued defendant.
    Held, as' defendant received plaintiff’s assignor’s check, with knowledge that it was excessive in amount, and credited its agent with the amount stated by him to have been repaid, it is the same as if plaintiff’s assignor had paid the amount to the defendant.
    That, when the agent’s check was dishonored, the demand against the defendant still subsisted;
    That defendant’s reliance on its agent’s statement, that the excess was repaid, was at its own risk.
    Appeal by defendant from a judgment rendered by the justice of the Municipal Court of the city of New York, ninth district, borough of Manhattan, in favor of the plaintiff. Action for money had and received.
    J. Noble Emley, for appellant.
    Jacob M. Leibner, for respondent.
   Bischoff, J.

The plaintiff, assignee of the claim of one Marx, brought this action for money had- and received upon the following state of facts. Marx owed the defendant $750, secured by a chattel mortgage, and paid off the obligation by a check for $900 .drawn to the defendant’s order by the Hudson County Consumers’ Brewing Company. This check was received for the defendant by its agent, Habernicht, who gave Marx his personal check for the difference of $150, and the defendant, with full knowledge that the payment by Marx was excessive of the amount due, obtained the $900 upon the Hudson Company’s check and credited Habernicht with the difference, upon his statement that he had settled with Marx. ' Habernicht’s check was not honored, and the plaintiff has recovered judgment upon Marx’s claim for $150 against the defendant.

There is no question of the status of the parties as to the $900 check; it was drawn to- the defendant’s order for the plaintiff’s assignor’s accomodation, and so accepted by the defendant. The drawer had no interest in the defendant’s application of the proceeds, and, in legal effect, the situation is the same as though Marx paid the defendant $900 in cash. Marx accepted the agent’s check, but the means of payment of the defendant’s debt failed when payment of the check -was refused, and .the demand against the defendant still subsisted. Porter v. Talcott, 1 Cow. 359. The facts do not support the inference that Marx intended to transfer his claim against the defendant to Habernicht and to accept the latter’s responsibility. There was no implied release of the defendant, and its reliance upon Habernicht’s assertion that he had settled the claim for the overpayment of $150 was, of course, an attitude assumed at its own risk.

The plaintiff was entitled to recover, and the judgment is, therefore, affirmed, with costs.

Freedman, P. J., and Fitzgerald, J., concur.

Judgment affirmed, with costs.  