
    The Oriental Bank, Respondent, v. Saverio Gallo, Appellant.
    Second Department,
    April 27, 1906.
    Bilis and notes—forged indorsement of check—subsequent indorsers liable thereon.
    The indorser of a check warrants that prior indorsements are genuine and is liable to-make good the amount he has received when it is- discovered that an indorsement priorto his was a forgery.
    The transferee of Such indorser, by collecting' the check through the clearing house and guaranteeing the indorsei icnts, is not obliged to allow a suit brought ■against it by the drawee to go to judgment before repaying the amount of the check. As. the indorsement was a forgery, such repayment is not voluntary.
    Appeal by the defendant, Saverio Gallo, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk' of the county of Kings oh the 16th day of February, 1905, upon the verdict of _a jury, and also from an order entered in said clerk’s office .on the 23d day of March, 1905,. denying the. defendant’s motion for a new trial made upon the minutes.
    
      J. Stewart Ross [Effingham L. Holywell with him on the brief], for the appellant.
    
      De Witt Bailey for the respondent.
   Hirschberg, P. J.:

This action is brought by the Oriental Bank to recover from, the defendant, its depositor, the amount of a check deposited by the latter in the hank, upon the ground that the indorsement immediately prior to that of the defendant is a forgery. •

The check is the check of the Brooklyn Savings Bank, drawn upon the Nassau National Bank, certified by the latter and indorsed to the order of Antonio Copa, purporting to be indorsed by. Antonio Copa, .and then indorsed by the defendant: On the deposit of the check by the defendant with the Oriental' Bank, the plaintiff, the amount of the check was credited to the defendant’s account, and in due course the check was ^aid to the plaintiff through the 'clearing house by the Nassau National Bank, the indorsement being guaranteed in accordance with custom.

The Brooklyn- Savings Bank afterwards discovered ( that the indorsement of Antonio Cona on the check was forged. The Nassau National Bank thereupon on demand repaid the amount of the check to the Brooklyn Savings Bank and thereafter sued the plaintiff to recover such amount on its guaranty of the indorsements made at the time of the payment through the clearing house. The plaintiff paid'the Nassau Í3ank the amount of the check, with the costs and attorney’s fees in settlement of the action, and thereupon demanded from the defendant repayment of the money and duly offered to return the check to him. The only disputed question in the case, and which was properly submitted to the jury, and I think correctly decided by them, was whether or not the signature of Antonio Cona in the indorsement on the check was a forgery. While, this question was submitted as a disputed one, the evidence all points to the conclusion that the indorsement was forged. It appears that in the month of January, 1903, Antonio Cona, a resident of No. 273 Tillary street in Brooklyn, in company with another who owned the money, made a deposit of $600 in the Brooklyn Savings Bank. The money was deposited in the name of Antonio Cona, but the passbook was taken by the owner of the money. In some manner not explained, the passbook subsequently came into the possession of another person named Alphonse Cono, but sometimes called Antonio Cona or Tony Cona, by whom the book was presented to the savings bank in November, 1903, and a demand made for the money. The officers of the savings bank could not recognize this individual as the depositor, and, having some doubt as to his identity, concluded on consultation to deliver to him a check payable to the order of Antonio Cona for the amount of the deposit, with interest, in return for the delivery of the passbook. This was accordingly done, and the person to whom the check Was so given applied shortly afterward to the defendant, a private banker, and asked him to cash it. The defendant required an identification of the individual, as he was personally unknown to him, and on being assured by a neighbor that he was Antonio Cona, did cash it on the indorsement by this individual of the name of Antonio Cona, and then deposited it with the plaintiff as already stated.

The depositor, Antonio Cona, was a witness on the trial. It was proved beyond dispute that he was not the person to whom the check was given by, the savings bank, and that he was not the person who indorsed the check to the defendant and received the money on it from him. The 'defendant, who testified in his own behalf, made no claim as a witness that the depositor whom he saw as a witness for the plaintiff was the one from whom he received th'e check. I do,not see how the jury, under the circumstances, could have reached any other conclusion than that the - check was. procured by a fraud perpetrated by the individual who presented the passbook to the savings bank, and that the .indorsement by which the defendant was induced to cash the check was a forgery. The right of the plaintiff to recover under the circumstances is undoubted. The defendant’s indorsement was a warranty that the prior indorsement was genuine, and upon discovery of the forgery he became immediately liable to make..good the amount lie had received. (Story Prom. Notes [7th ed.], § 135 ; Turnbull v. Bowyer, 40 N. Y. 456 ; Bank of British North America v. Merchants’ Nat. Bank of N. Y., 91 id. 106; Lennon v. Grauer, 159 id. 433; Packard v. Windholz, 88 App. Div. 365 ; affd., 180 N. Y. 549.)

The plaintiff was not obliged to allow the suit brought against it by the Nassau Natioiial Bank to proceed to judgment before making the payment which it did. In making such payment it did only what it could have been compelled to do, assuming that the disputed signature was a forgery. The signature proving to: be a forgery, such payment is not to be regarded as voluntary in any' sense which -would operate to relieve the defendant from -his liability to restore the money which he received from the plaintiff upon his implied guaranty of the genuineness -of the forged indorsement.

The judgment and order'must be affirmed.

Woodward, Jenks and Hooker, JJ., concurred; Gaynor, J., concurred in result.

Judgment and order affirmed, with costs.  