
    Moy Sie Tighe, Plaintiff, v. James C. Fargo, as President of the American Express Company, Defendant.
    (Supreme Court, New York Special Term,
    November, 1908.)
    Negotiable instruments —1 Payment — Payment to person in possession.
    Sales — Nature of contract — Sale or agreement to pay money.
    Whether a check was payable to Tong Sing Wo Kee or to Long Sing Wo Kee will not be decided upon demurrer to the complaint from an inspection of the instrument.
    Where the defendant, an express company, delivered to plaintiff in the city of New York a written instrument directing a bank in Hong Kong, China, to pay to the individual named therein a certain sum “on presentation of this cheque from our balance,” the instrument constitutes an agreement to repay at Hong Kong, out of defendant’s balance at the bank, a certain sum deposited in New York with it for the individual named in the instrument, and does not constitute the sale of a chattel.
    Where a complaint alleges the execution and delivery by defendant of a certain instrument described as a “ cheque,” directing a bank at Hong Kong to pay the individual therein named a certain sum in local currency “on presentation of this cheque from our balance;” that the instrument was mailed by registered letter to. Tong Sing Wo Kee but was not delivered to him, but came into the possession of a person who received payment on an indorsement of “ Long Sing Wo Kee ” at a time when the instrument was in a “ battered condition,” and that payment of a duplicate was refused by the bank, it states a cause of action; and a demurrer to the complaint for insufficiency will be overruled.
    Demurrer to complaint.
    Hax J. Kohler, for plaintiff.
    Carter, Ledyard & Milburn, for defendant.
   Dayton, J.

The plaintiff for his first cause of action alleges the execution and delivery by the defendant of a certain instrument described as a “ cheque.” This instrument directs the Chartered Bank of India, Australia and China at Hong Kong to pay to the individual therein named $1,800 local currency on presentation of this cheque from our balance.” The plaintiff further alleges that the instrument was mailed by registered letter to one Tong Sing Wo Kee at Hong Kong, but that it was not delivered to the said Tong Sing Wo Kee, but came into the possession of some other person who received payment on an indorsement of Long Sing Wo Kee,” at which time the said instrument was in a battered condition,” and that payment of a duplicate was thereafter refused by the Chartered Bank ” above named. The original instrument was presented on the argument, and I am asked to say, as matter of fact, from an inspection, whether it is payable to “ Tong ” or Long ” Sing Wo Kee. This seems to be a novel proposition. My decision as to this would, on appeal, invite the Appellate Division to exercise its knowledge as to handwriting, and that without the benefit of comparison or any testimony. It seems to me that this request may not be complied with. It is certain from the pleadings that this instrument was intended for Tong Sing Wo Kee, and was mailed to him. It reached a stranger to the transaction, and, in a more or less mutilated condition, was presented by and paid to a stranger sixty days after the date of mailing. So far as I may comment upon the appearance of the instrument, I should say that the bank was put upon inquiry, particularly if presentment was made considerably after a “ due course ” period. I think this transaction was not the sale of a chattel, but an agreement to repay at a distant point out of defendant’s balance a particular sum deposited here for Tong Sing Wo Kee with the defendant. If this instrument could be considered a chattel, then all defendant’s responsibility ended when it was delivered. Safe banking cannot be predicated upon such a theory. The defendant, however, claims that the Hong Kong Banking Law relieves the Chartered Bank from responsibility, and that the defendant is also protected by the provisions of that lav? on the ground that the law of the place of performance, in this case the place of payment, governs. Assuming this proposition to he true, it will still be observed that the protection of the Hong Kong law can only be invoked when the bank “ pays the bill in good faith and in the ordinary course of business.” The stipulation of the parties to this action, while excluding any contention of negligence on the part of the defendant from the first cause of action, reserves the right to have determined, the manner in which and the circumstances under which the instrument was drawn and paid * * * if material in determining whether or not the payment of the instrument was made in due course.” It would seem, from a consideration of the facts already cited, that whether or not this instrument was presented in “ due course ” is a question of fact which it may be necessary to decide in order to determine the legal rights of the parties. The question is specifically presented by the plaintiff in the first cause of action, to which the defendant has demurred for insufficiency. I think the demurrer must be overruled, with leave to defendant to answer over upon the usual terms.

Demurrer overruled, with leave to defendant to answer over upon usual terms.

Demurrer overruled.  