
    Henry Clews and Ano., Resp’ts, v. Bank of New York National Banking Ass’n, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 26, 1889.)
    
    1. Bills and notes—Action on forged draft—What negligence will JUSTIFY RECOVERY.
    Action to recover from the defendant the amount of a forged bill of exchange paid by the plaintiffs and certified to by the defendant. When the case was before the court on appeal from the former trial, it was there said that the plaintiffs could recover if the jury should find upon sufficient • evidence that the defendant was culpably negligent to the injury of the plaintiffs in not referring to its register of certified bills (which referred to the draft in question, and would have disclosed the fraud), at the time when the plaintiffs’ messenger called at the bank to ascertain whether the certification of the check was good. Whether the defendant was so negligent was submitted to the jury and found for the plaintiffs: Held,, that under the decision on the former appeal such finding will sustain this judgment.
    8. Evidence—When not competent.
    
      Held, that the testimony of a witness who was not a party to the contract of certification in question, as to his understanding of contracts of certification of a check or draft, is not admissible.
    Appeal from a judgment of the general term of the New York common pleas, affirming a judgment of the trial term entered upon a verdict of the jury.
    
      Albert A. Abbott, for plt’ffs, respt’s; Wheeler H. Peckham, for def’t, appl’t.
    
      
       Affirming 15 N. Y State Rep 1019.
    
   Follett, Ch. J.

—January 6, 1879, the Commercial National Bank of Chicago, drew a sight bill on the defendant, of which the following is a copy:

“ $254.50. Commercial National Bank of Chicago. Duplicate unpaid. Chicago, 111., January 6, 1879. Pay to the •order of Wirt Dexter, two hundred and fifty-four 50-100 •dollars.
To the Bank of New York Nati.onal Banking Association, New York. No. 73,436.
T. S. FAMES,
Cashier.”

The payee endorsed and mailed the bill to Augusta H. D. Godman, at the city of New York. The bill never reached ■the endorsee, but in some way fell into the hands of a knave. •January fifteenth, this genuine bill was presented to William H. Meany, the paying teller of the drawee, who certified it by cutting through it near the right hand end with a ¡stamp, the words “ Certified—Bank of New York, N. B. A.,” and signing “ Meany.” A memorandum of the bill was ■entered upon the register kept of bills drawn by the drawer upon the drawee, showing its number, amount, and that it was certified February tenth, the drawer notified the drawee that the bill had not come to the hands of the endorsee, and not to pay it. This notification was received February twelfth, and thereupon the drawee added to the previous entry descriptive of the bill, made in its bill register, the words: “ Stop payment, see letter of February 10, 1879.”

March 3, 1879, a stranger to Henry Clews & Co., entered the banking house of that firm in the city of Hew York, and purchased $2,500 par value of U. S. 4 per cent bonds and offered in payment an instrument in the form of a bill of exchange, of which the following is a copy:

“$2,540. Commercial Hational Bank of Chicago. Duplicate unpaid. Chicago, 111., February 27, 1879. Pay to the-order of Henry Clews & Co., twenty-five hundred and forty dollars.
To the Bank of Hew York Hational Banking Association, Hew York. Ho. 73,436. /
T S. FAMES,
Cashier”

Across this bill and near the right hand end were cut the words: “Certified—Bank of Hew York, H. B. A.,” which was signed, “Meany.” Before receiving the bill in payment for the bonds, the plaintiffs sent it (March 3, 1879), to-the defendant for the purpose of learning whether it was: good. Precisely what was said by the plaintiff’s messenger to the defendant’s teller and by him to the messenger was. an issue of fact which was submitted to the jury. Upon the return of the plaintiff’s messenger the bonds were delivered, to the purchaser with the plaintiffs’ check for $33.75, the difference between the purchase-price of the bonds and the bill. March fifth the bill for $2,540 was presented to the defendant for payment, which was refused upon the ground that-it was a forgery. It is conceded that the original bill (first above set forth), was changed from $254.50 to $2,540, Henry Clews & Co., substituted in the place of Wirt Dexter, as-payees, and the date changed from January 6, 1879, to February 27, 1879.

This action was brought to recover the amount of the bill from the defendant upon two grounds:

First. That the usual liability incurred by a certifying" drawee was enlarged by the interview of March 3, 1879, between plaintiffs’ messenger and defendant’s paying teller..

Second. That defendant’s paying teller was guilty of actionable negligence in stating, March 3, 1879, to plaintiffs’ messenger, that which was stated, and in not stating the facts within the knowledge of the defendant’s officers and. the paying teller.

Upon the trial of an issue of law raised by a demurrer-interposed to the complaint, the demurrer was overruled' and leave given to the defendant to answer (8 Daly, 476).. Upon the first trial of the issue of fact, the plaintiffs had a. verdict, upon which a judgment was entered, _ which was., affirmed by the general term without an opinion, but was. reversed by the court of appeals (89 N. Y., 418). Upon the ■second trial of the issue of fact, the plaintiffs were non-suited and the judgment entered thereon was affirmed by the general term without an opinion, but was reversed by the court of appeals (105 N. Y., 398; 7 N. Y. State Rep., 368). Upon the third trial, the plaintiffs had a verdict, upon which a judgment was entered, which was affirmed by the general term, from which judgment of affirmance this appeal was taken.

Upon the trial the plaintiffs’ messenger testified that, in ■obedience to his instructions, he handed the bill to some person standing at the paying teller’s window in defendant’s bank, and said: “Henry Clews & Co. want to know whether the certification of this check is good;” that the person took the bill, rubbed his thumb over the corner where the amount had been written in, turned it over and looked at its back, said “yes,” and handed it to the mes•senger, who returned to the plaintiffs with the information and bill. On the contrary, Mr. Sherman, defendant’s certifying teller, testified that the bill was presented to him by the messenger, who asked “ if the certification was correct,” and he (Sherman) replied “that it was.” It is conceded that whoever answered the inquiry of the messenger did so without referring to the register of bills whereon was entered the number and amount of the original bill, with the direction not to pay it, and that the numbers of the original bill and of the forged bill were identical.

Four questions of fact were submitted to the jury:

First. Whether plaintiffs’ messenger presented the bill to defendant’s paying teller, as asserted by the plaintiffs, or to defendant’s certifying teller, as asserted by the defendant? The jury was instructed that if this question was found against the plaintiffs they could not recover.

Second. “If, however, you are satisfied that this question was asked by McCormack (plaintiffs’ messenger) at the ■paying teller’s window, then you are to determine whether or not, as a matter of fact, the inquiry which, he says, he made of the person who occupied the position of defend.ant’s paying teller, was understood by the latter as referring to the validity of the certification at the time of the inquiry, as distinguished from the genuineness of the marks of certification only; and also whether the answer made by the paying teller, or the person acting as paying teller, to Mr. McCormack referred to the check or draft, No. 73,436 .as certified, instead of to the mere marks of certification.” The court charged in respect to this issue: “If the question asked by plaintiffs’ messenger was susceptible of two interpretations, one making the question refer to the certification only and the other making it refer to the whole check, and the person of whom the question was asked understood it as referring to the marks of certification only, the plaintiffs cannot recover.”

Third. ‘ ‘ If you believe from the evidence that the plaintiffs were guilty of negligence in not informing the defendant at the time of asking the question as to the circumstances under which the plaintiffs received the check, or in not asking more definitely for the information they desired,, and such negligence contributed to the result, then the-plaintiffs cannot recover.”

Fourth. “Whether or not the defendant was culpably negligent under the circumstances disclosed by the evidence in this case in answering the question which McCormack (plaintiffs’ messenger) says he asked at the-paying teller’s window, without referring to the registration book and the book of stop payments, which referred to the draft in question by its number, and would have-disclosed the fraud. In that connection, I will also charge you, that if the defendant was guilty of no want of ordinary care in respect to the answer given to the plaintiffs’’ messenger, the plaintiffs cannot recover, for the inquiry was merely about the certification marks.”

The remarks of the court which accompanied the submission of these issues to the jury were not unfavorable to the defendant, but all of the issues were found in favor of the plaintiffs.

Upon the first trial the court instructed the jury, in effect, that if plaintiffs’ messenger asked defendant’s paying teller whether the certification was good, and the teller answered in the affirmative, the answer of itself, as-matter of law, rendered the defendant liable. For this, error, it is said, in 105 N. Y., 401; 7 N. Y. State Rep., 368, the first judgment was reversed.

In considering this case when it was before the court off appeals the second time, it was said: “It by no means follows, however, that that decision (89 N. Y., 418) established that the defendant was absolutely exempt from liability, and could not be held responsible even if the defendant, at the time the teller said that the certification was good, had notice that it had ceased to be good by reason of the subsequent alteration of the draft, or had in its possession the means of ascertaining that fact, and the jury should find that it was guilty of culpable negligence, under the* circumstances, in omitting to resort to those means of information, and thus misled the plaintiffs to their injury.” 105 N. Y., 402; 7 N. Y. State Rep., 368. * * *

Again, it was said: “ Without regard to the admissibility of evidence of usage, the plaintiffs had a right under the circumstances offered to be proved, to go to the jury on the question whether the inquiry made of the teller was understood by the parties as referring to the validity of the certification at the time it was exhibited to the teller, or only of the genuineness of the marks of certification, but also on the question whether it was culpably negligent, under the circumstances, to answer the question without referring to the certification book and the book of stop payments, which referred to the draft in question by number,, and would have disclosed the fraud.” 105 N. Y., 403; 7 N. Y. State Rep., 368.

The fair import of this opinion interpreted by the judgment rendered, is that the plaintiffs could recover if the-jury should find upon sufficient evidence that the defendant was culpably negligent, to the injury of the plaintiffs, in not referring to its register of certified bills and the letter thereon referred to, and reporting to the messenger that bill No. 73,436, drawn by the Commercial Bank of Chicago, was drawn for $254.50, not for $2,540; that it was certified by this bank for $254.50, January 15, 1879, more than forty days before the date of No. 73,436, now presented by you, the-drawer reports that it has been lost, and its payment has-been stopped. Defendant’s cashier testified that all of these facts could have been learned from the register and the letter, all of which facts were at one time known to the paying teller, but were evidently not in mind at the time of. the interview with.plaintiff’s messenger.

Whether the defendant was negligent -in this respect was submitted to the jury, and found for the plaintiffs, and under the decision of the court of appeals, it is sufficient to-sustain this judgment, unless some error against the defendant was committed in receiving or rejecting evidence, or instructing, or refusing to instruct, the jury. The court was asked to charge “that if the jury .believe from the-evidence that at the time the draft was presented at defendant’s bank, the person to whom it was presented did not know that it was the same draft, payment of which had. been stopped, or that it was an altered draft, but supposed it a genuine draft, and answered the question in good, faith, the plaintiffs cannot recover.” This is not the test, laid down by the court of appeals. The court expressly-held that the plaintiffs need not go so far as to establish that the defendant or its paying teller was guilty of an intent to defraud the plaintiffs, but that a recovery, might be-had if the paying teller was negligent in failing to ascertain and disclose the facts to the plaintiffs’ messenger. This is not an action for deceit, and the plaintiffs do not assert intheir complaint or evidence that any of the defendant’s employees intentionally deceived the plaintiffs, and the in«tractions asking that deceit must be established, were properly refused.

The appellant urges its tenth point, “that the court erred in refusing to charge that the teller was not the agent of the bank for the purpose of giving information other than as to genuineness of signature of drawer and acceptor.” We are not referred to the folio where this request is found in the record, nor have we found it.

_ The Security Bank v. National Bank (67 N. Y., 458), is ■cited in support of the position that the refusal of this request, if made and refused, is error. In the case cited, the plaintiff did not seek to recover upon the ground that the defendant was guilty of actionable negligence, but "upon the contract of certification, which the plaintiff «ought to enlarge by proving that the certifying teller gave the cotemporaneous assurance that the bill was “correct in every particular,” and the authority is not germane to the question here discussed.

The question put to Mr. James B. Clews, “ what do you understand to be the contract of certification of a check or ■draft? ” did not call for a relevant fact. He was not one of the parties to the contract, and his understanding to the effect of such contracts was not admissible for or against the plaintiffs. Security Bank v. National Bank, 67 N. Y., 458.

The question did not call for the witness’ understanding ■of the effect of the certification in question or for his understanding of the information received from the messenger, but for bis understanding of contracts of certification. The remaining exceptions seem to call for no consideration.

The judgment is affirmed, with costs.

All concur.  