
    VICTOR RIVARA, APPELLANT, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, RESPONDENT.
    Submitted July 10, 1922
    Decided November 20, 1922.
    On appeal from the Supreme Court, m which the following per curiam was filed:
    “Rivara cashed some checks of the railroad company apparently given to their employes. At any rate, they were payable to the order of employes. It turned out that they had come into the hands of men who had no right to> them; they endorsed them, however, in the names of the employes to whom they were payable, and, apparently, in the presence of Rivara. The railroad company stopped payment on the checks and the bank charged them back to Rivara’s account. He now sues to recover from the railroad company.
    “It is difficult to see where he gets any title. It was conceded on the trial by the plaintiff’s attorney that the endorsements were made by the same impostors in each case, who fraudulently obtained the checks. This seems to bring the case within section 23 of the Negotiable Instruments act, and to distinguish it from Montgomery Garage Co. v. Manufacturers’ Liability Insurance Co., 94 N. J. L. 152. The point in that case was that the man to* whom the check was given Was the identical man that the maker of the check intended should draw the money. It was a case of misnomer and not a case of forgery, and the Court of Errors and Appeals was careful to say that if the plaintiff in that case, before cashing the check, had sent for and asked the drawer whether or no!, the person presenting the check was the person to whom it was-intended to be paid, the answer would have been in the affirmative. Here, on the contrary, if the plaintiff, before cashing the check, had made any inquiry at all from the railroad company, he would have ascertained that they meant the check to be paid to one of their own employes. Under those circumstances it was incumbent on Bivara to ascertain that the person to whom he was paying it was the person designated in the cheek, and this- he failed to' do. It was not a case of negligence on the part of the railroad company, since they made it payable to the order of the mail to whom the money belonged, and the negligence was on the part of Bivara in failing to ascertain that the endorsement, which he witnessed, as he says, was made by the person named in the check as payee. It was not made to the person named in the check as payee, nor was it made to anyone to whom the railroad company intended it should be paid, as in the Montgomery Garage ease. We think the trial judge was in error and that the judgment must be reversed.”
    For the appellant, Smith, Mabon & Herr.
    
    For the respondent, Frederic B. Scott.
    
   Per Curiam .

The judgment under review herein should be affirmed, for the reasons expressed in the opinion of the Supreme Court.

For affirmance — The Chancellor, Chief Justice, Trenchard, Parker, Bergen, Minturn, Kalis cti, White. Williams, Gardner, Agkerson, Van Buskikk, JJ. 12.

For Fever ml — Uone.  