
    Arthur H. Walton, Respondent, v. The Riverside Bank, Appellant.
    (City Court of New York, General Term,
    July, 1899.)
    Bank — Liability to depositor for lost check of third party — Interest.
    A bank becomes the owner of a check deposited with it for collection; and if it loses the check and thereby fails to collect it, when it might otherwise have done so, it is liable to the depositor for the amount of the check and for interest thereon during the time that he has been deprived of the use of his money.
    Appeal from judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial on the minutes.
    Wallach & Cook, for respondent.
    Lyman Lewis Settel, for appellant.
   Schuchman, J.

The plaintiff, having a deposit account in the defendant hank, deposited with it, on September 30, 1890, with other checks, a check of $175, drawn by one, Frank J. Kimball on the Hackensack Bank of New Jersey, to the order of the plaintiff, for which credit was given plaintiff in his pass-book. The check was lost by the defendant. It was admitted on the trial that if the check had been presented in due course at the Hackensack Bank of New Jersey, it would have been honored, as the drawer had, at that time and within a reasonable time thereafter, sufficient funds in the bank to meet the check. . On November -24, 1890, defendant informed plaintiff of the loss of the check and that his account had béen charged back with $175, and when his bank-book was returned to him balanced, with the vouchers, one of them was a memorandum bearing date, November 24, 1890, to that effect. The plaintiff brought this action on contract to recover the said sum of $175.

The rule of law is, “ Whenever a deposit is made by a customer in a bank in the ordinary course of business, of money or of drafts or checks received and credited as money, such money, drafts or checks become the property of the bank in absolute ownership.” Thereby the relation of creditor and debtor is established, .and the depositor can sue the depository for the amount of its indebtedness to him in an action on contract. Moore v. Riverside Bank, 25 Misc. Rep. 720, and cases therein collated. The conflict as to whether the check was deposited in the ordinary course of business, or under a special agreement, was properly submitted to the jury, and its conclusion thereon is final. The bank deprived the plaintiff of his money ever since November 24, 1890, when it took the $175 off his account, and is, therefore, properly chargeable with interest from that time.

Judgment and order appealed from, affirmed with costs.

IIascall, J., concurs.

Judgment and order affirmed, with costs.  