
    Jacob Wolfin, Respondent, v. The Security Bank of New York, Appellant.
    First Department,
    December 30, 1915.
    Bills and notes — delivery of check to agent for delivery to indorsee — wrongful delivery to a third person on forged indorsement — constructive delivery to indorsee — when drawee cannot withhold proceeds of check from legal owner.
    Where the maker of a check required the payee named therein to indorse the instrument as payable to the order of the plaintiff and delivered the check thus indorsed to the payee with instructions to deliver the same to the plaintiff, there was a constructive, although no actual, delivery to the plaintiff so as to vest him with legal title.
    Hence, although the instrument was never delivered to the plaintiff but came into the hands of a third person upon a forged indorsement of the plaintiff’s name and such person deposited the check to his own account in the bank upon which it was drawn, the bank must pay the amount to the plaintiff. This, because the bank could acquire no title to the check, nor right to collect it, through the forgery of the plaintiff’s indorsement and having collected the proceeds may not retain them as against the plaintiff.
    It is immaterial whether the maker of the check made the payee his own agent or the agent of the plaintiff' for the purposes of delivering the check to the latter.
    Ingraham, P. J., and McLaughlin, J., dissented, with opinion.
    Appeal by the defendant, The Security Bank of New York, from a determination and order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 14th day of June, 1915, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Ninth District, in favor of the plaintiff, rendered after a trial before the court without a juiy, with notice of an intention to bring up for review the original judgment of the Municipal Court.
    
      Herman B. Goodstein, for the appellant.
    
      Bernard Chambers, for the respondent.
   Scott, J.:

Plaintiff, claiming as owner of a check indorsed to his order, upon which his signature was forged, sues defendant into whose hands the check subsequently came, and who collected the amount thereof from the bank upon which it was drawn. The facts are as follows: One Robert M. Bergman drew his check upon the Twenty-third Ward Bank for $450, payable to the order of Samuel Litt. He then caused Litt to indorse the check payable to the order of Jacob Wolfin, this plaintiff, and delivered the check thus indorsed to Litt with instructions to deliver the same to Wolfin, which Litt promised to do. He did not so deliver it, however, and the check never came into Wolfin’s hands. Someone, the case does not disclose who, forged Wolfin’s signature on the back of the check, and in this condition it came into the hands of one Grossman, who deposited it to his own account with defendant, the Twenty-third Ward Bank, on which the check was drawn. There is no explanation why the check was originally drawn in favor of Litt, instead of Wolfin, nor does it appear that Bergman, when he drew the check, was indebted to Litt. The question involved turns, as we think, upon plaintiff’s ownership of the check, and it is to that question that appellant directs its argument. The defendant bank could acquire no title to the check, nor right to collect it through forgery of the indorsement of one of the owners in the chain of title, and having collected the proceeds it may not retain the money against the true owner. (Seaboard National Bank v. Bank of America, 193 N. Y. 26, 30; Graves v. American Exchange Bank, 17 id. 205, 208.)

We consider that upon the evidence as it comes before us, it must be held that Wolfin became the owner of the check. Section 60 of the Negotiable Instruments Law (Consol. Laws, chap, '38; Laws of 1909, chap. 43) provides as follows: An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to bearer it is negotiated by delivery; if payable to order it is negotiated by the indorsement of the holder completed by delivery.” And section 2 of the same act provides: “ ‘Delivery ’ means transfer of possession, actual or constructive, from one person to another.”

Here there was no actual delivery to Wolfin, but there was, as we think, a constructive delivery. Such a delivery has been defined as one which is effected by direction to a third person in actual possession of the instrument to deliver it to, or to hold it for, the payee.” (Norton Bills & Notes [3d ed.], 67.) The precise question was passed upon by the Court of Appeals in Worth v. Case (42 N. Y. 362), in which the court said (at p. 367): “ There is no doubt that a delivery of a deed or note or other obligation to one person in favor of and for the benefit of another, constitutes a valid and binding delivery as against the party who delivers it, whether the party in whose favor it is delivered is the owner of it, or not; and for the purpose of protecting his interests, the law holds the party receiving the delivery as his trustee, and makes his acceptance of it the acceptance of the beneficiary. And this, too, whether the person receiving the delivery knows the contents of the instrument or not, and whether he does anything more than merely receive it or not.” And the same rule has frequently and uniformly been applied in this and other jurisdictions.

Applying these principles to the case at bar it seems clear that Wolfin became the owner of the check when the maker intrusted it to Litt for delivery to plaintiff. Up to that moment, so far it appears, the check had not become negotiable, for although drawn to Litt’s order, it had not been transferred to him in such manner as to constitute him the owner thereof.

Until the indorsed check was delivered to Litt for the sole purpose of delivering it to Wolfin, the maker retained domination and control over it. The transfer which under the statute was necessary to impart negotiability to the check was the delivery to Litt for the sole purpose of delivery to plaintiff.

Why the maker adopted the form of drawing the check to Litt’s order and causing him to indorse it we do not know and need not inquire. It is significant that it was never transferred to Litt for the purpose of constituting him the holder and owner thereof. It is of no consequence that Litt was the maker’s agent to make delivery to Wolfin. It may be that Wolfin need not have elected to assert ownership to the check, and might have preferred to resort to the original debt which the check represented. The fact is that he elected to accept and stands on the transfer to himself.

It really is of no consequence to defendant whether it pays the amount it collected to Wolfin, or to some one else. In any event it never gained title to the check, and if it he not required to pay the money collected back to the real owner of the check, it would remain liable to repay it to the bank from which it collected the amount.

The determination appealed from is affirmed, with costs.

Clarke and Dowling, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.

Ingraham, P. J. (dissenting):

I think when Bergman, the maker of the check, made it payable to the order of Litt, Litt became the holder of the check. He indorsed it in the presence of the drawer of the check to the order of the plaintiff, and the drawer then instructed him to deliver the check to the plaintiff. If the drawer of the check wished to pay the sum of money to the plaintiff, there is no explanation why he went through this process of drawing the check to Litt, instead of directly to the plaintiff. Litt, being the payee of the check and having it in his possession, had authority as to third parties to obliterate the direction to pay to the plaintiff and transfer it to a third party, who would then have a good title to the check. If instead of thus obliterating the name of the plaintiff, he signed the plaintiff’s name, and then as owner of the check transferred it to the defendant, I do not see why the defendant would not acquire title to the check. Plaintiff never had possession of the check. It might be, as stated in the prevailing opinion, that if the drawer of the check had delivered it to a third party for delivery to the plaintiff, that would be a constructive delivery which would justify the plaintiff in maintaining the action, but it was delivered, not to a third party, but to the payee.

In Worth v. Case (43 N. Y. 362) it was stated that where the instrument is delivered, not to the person to whom it is payable, hut to a third party for the benefit of the plaintiff, it will be held that that constituted a valid and binding delivery as against the party who delivered it, and, as between the maker of the check and the plaintiff, the law would hold that the party receives the delivery of the instrument as plaintiff’s trustee and makes the acceptance of it the acceptance of the beneficiary.

In this case the plaintiff served a bill of particulars. It was there alleged that the check was indorsed, pay to the order of the plaintiff, by the payee; that after the check was so indorsed, the drawer of the check handed it to Litt, with authority and with instruction to deliver it to the plaintiff; that the said Litt did not deliver the check to the plaintiff, but converted the same to his own use; that Litt forged or caused to be forged the name of the plaintiff on the back of said check; that said check so forged was presented by said Litt to one Grossman and said Litt obtained from the said Grossman the sum of $450 in payment of said check, and that thereafter and on September 23, 1914, two days after the check was drawn, the said Grossman deposited said check with the defendant, and on that day defendant collected and received the proceeds of said check from the bank upon which it was drawn. There was no evidence to contradict these allegations in the bill of particulars and the defendant proved that it réceived the check from Grossman in good faith for deposit, collected the check, and paid the amount thereof to Grossman.

I think, therefore, on the face of the instrument, Litt being the payee, had authority to dispose of the check to a bona fide holder for value in good faith, and it is entirely inmaterial who signed the plaintiff’s name on the check, so long as it was actually negotiated by Litt, who received the proceeds, and that, therefore, the plaintiff could not recover the amount of the check from the defendant.

It follows that the judgment should be reversed.

Laughlin, J., concurred.

Determination affirmed, with costs.  