
    Henry W. Sage et al., App'lts, v. David G. Burton, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 8, 1893.)
    
    Payment—Unauthorized indorsement by agent.
    In an action for goods sold the answer alleged payment, the only proof of payment was that a check for $100 less than the amount of the bill was given to plaintiffs’ agent, who had authority to receive payments and make reductions, and that such check had been returned. through the bank indorsed with the firm name and by the agent. It was conceded that the indorsement in the firm name was a forgery. Held, that there was no proof of authority in the agent to indorse the check or to receive one for less than the amount of the hill in the absence of proof of error or mistake, and that the proof was insufficient to show payment.
    Appeal from judgment dismissing the complaint at the close of plaintiffs’ evidence, pursuant to the direction of the court.
    The action was brought by the plaintiffs to recover of the defendant the sum of three hundred and forty-six dollars and thirty-six cents ($346.86), with interest thereon, for goods sold and d'elivered by the plaintiffs to the defendant, and services rendered, •both at the defendant’s request.
    The defendant, in his answer, admits the sale and delivery of .the goods, and the rendering of the services’ at his request, and alleges payment. He sets up no counter-claim, but merely alleges payment of the account.
    The plaintiffs compose the firm of H. W. Sage & Co., dealers in lumber.
    The only evidence of payment offered on the trial was a check drawn by the defendant (and produced by him at the trial during the cross-examination of one of the plaintiffs), to the order of H. W. Sage & Co., for two hundred and thirty-four dollars and eleven cents ($234.11), or exactly one hundred dollars ($100) less than the amount of the claim in suit.
    The check bore upon its back the words “ H. W. Sage & Co.,"’ “ J. B. Abbott,” was drawn upon the People’s Bank of Mt. Vernon, and apparently paid by said bank March 10, 1890.
    The indorsement on the check of the name of IT. W. Sage & Co., the payees named in it, was a forgery, and conceded to be such. The check never came to the possession of the plaintiffs, and Abbott, whose name also appeared on its back, had no authority to make the indorsement of their name.
    The plaintiffs had no knowledge of the existence of the check until after the bringing of this suit.
    As to the remaining one hundred dollars ($100), a statement for the amount sued for was produced by the defendant and admitted, under objection and exception of the plaintiffs’ counsel, receipted in the name of H. W. Sage & Co. by Abbott, showing a deduction of $100 on the account. This allowance was in the handwriting of Abbott and did not come to plaintiffs’ knowledge until after suit brought.
    
      Tracey & Cooper (James Fenimore Cooper, of counsel), for app’lts; George II. Stevens, for resp’t.
   Per Curiam.

The defendant failed to show any authority in Abbott to indorse the check. On the contrary, it appeared that he had no such power. Certainly, without any proof of error or mistake in plaintiff’s account, which is admitted by the answer, he was not shown to have possessed any power, as agent of plaintiffs, to receive a check for $100 less than plaintiffs’ conceded account in payment thereof. The check with which defendant claims to have paid the account set out in the complaint was produced on the trial by defendant, with a forged indorsement, and hence was then in defendant’s possession unpaid.

We think defendant did not show payment of plaintiffs’ conceded account, and hence that it was error to non-suit.

The judgment should be reversed and a new trial granted, costs to abide the event.

Mayham, P. J., and Putnam, J., concur; Herrick, J., not acting.  