
    Brooklyn Trust Co. v. Toler.
    
      (Supreme Court, General Term, Second Department.
    
    July 22, 1892.)
    1. Certified Check—Drawee’s Mistake—Stock Exchange Losses—Notice.
    A drawee by mistake certified a check drawn to the order of P., chairman of a stock exchange, given as a margin to secure C. on certain stocks. P. deposited it with other moneys of the exchange, and the following day, before 10 A. M., the exchange was notified of the mistake, the drawee demanding the check, and ofiering to pay any loss realized by C. Held, that the exchange could not hold the check to cover subsequent losses of the drawer to its members.
    2. Same—Payment through Clearance House—Assigned Claims.
    The subsequent payment of such check by the drawee through the clearance house, to comply with the rule requiring a certifying bank to pay the check, and settle all questions of validity with the parties to the paper, did not give the exchange any better title to the money than it had before; nor did it give claims for losses of its members against the drawer, in the hands of an assignee, any right to the avails of the check.
    Case submitted on agreed statement.
    Action by the Brooklyn Trust Company on a submitted case against Henry P. Toler to recover the proceeds of a certain certified check in the hands of the clerk of the court of Kings county. Defendant claims the same moneyas assignee of certain claims against the drawer of the check, in which attachments were duly issued and served on the person in whose custody the avails of the check were before being paid to the clerk of the court. Judgment for plaintiff.
    Argued before Barnard, P. J., and Dykman, J.
    
      Bergen & Dykman, ( William W. Dykman, of counsel,) for plaintiff. Royal S. Crane, for defendant.
   Barnard, P. J.

On the 21st of October, 1891, the Brooklyn Trust Company certified a check to be good which was drawn by William B. Whitehouse on the trust company to the order of Augustus W. Peters, chairman. Peters was chairman of the Consolidated Stock & Petroleum Exchange. The check was given as a margin to secure I. M. Comsh upon certain railroad stock. The check was delivered by Whitehouse to Peters, and Peters deposited the check with other moneys of the exchange. The certificate was made by mistake, and on the 22d of October, 1891, before 10 A. m., the exchange had notice of the mistake. The trust company demanded the check, and offered to pay the loss realized by Comsh. This was $1,568.75. On the same day White-house suffered other losses to members of the board of the stock and petroleum exchange. The defendant represents these claims, other than Comsh, and, as such owner, demands the money, after Comsh is paid, of the exchange.

The exchange cannot keep the money, except to answer the Comsh loss. The trust company gave immediate notice of the mistake, and, except so far as there was a change of circumstances which had occurred by reason of the mistaken certification, a revocation of the certificate that the check was good could be made. Bank v. Wetherald, 36 N. Y. 335. The payment of the check by the trust company through the clearance house, to comply with the rule that a certifying bank must pay the check and settle all questions of validity with the parties to the paper, did not give the exchange any better title to the money than it had before. The exchange had no title except as to the ■Comsh claim, and Toler, by his judgment against Whitehouse, got no title to the money, which neither the exchange nor Whitehouse owned. Only one of the claims merged, if Toler knew of the existence of the certified check when the stock order was executed. He was neither a party nor a privy to the paper, and, so far as the case shows, had no better right than any of the general creditors of Whitehouse. There should be judgment, upon the submitted case, for the plaintiff.  