
    The National Bank of Commerce, App’lt, v. The Manufacturers & Traders’ Bank, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 21, 1890.)
    
    1. Banks and banking—Liability as to altered draft.
    Plaintiff drew a draft on the Manhattan Bank for seventeen dollars, which was raised by some one to $8,460.40 and deposited by payee with defendant, who gave him credit for the full amount, and through defendant’s New York correspondent it was paid by the Manhattan Bank, and charged to plaintiff. Defendant learning of this wrote to plaintiff to return the draft with affidavit of facts and it would make it right, and requested plaintiff not to make it public as they wanted to catch the forger, which requests plaintiff complied with, but defendant not remitting, plaintiff after some correspondence compelled the return of the draft and affidavit. Subsequently the Manhattan Bank paid part of the amount and plaintiff brought suit for the balance. Held, that although plaintiff’s acceptance and subsequent compliance with the proposition of defendants obligated the latter to pay the raised dratt, less seventeen dollars, yet the subsequent transactions constituted a rescission of such contract and so plaintiff parted with its right of recovery.
    3. Same—Action for moneys had and received.
    The action could not he sustained as in effect one for money bad and received, as it did not appear that defendant received moneys belonging to plaintiff or to which it was entitled.
    Appeal from judgment of the general term of the supreme court, fifth department, reversing a judgment entered on a report of a referee in favor of the plaintiff.
    Gn the 30th of October, 1882, the plaintiff drew a draft on the Manhattan Bank, its New York correspondent, for seventeen dollars to the order of J. T. Watson. The payee, or some other person, altered this draft by changing the date to November 2d, the name of the payee to James T. Watson, and the amount to $3,462.40. November 3,1882, Watson deposited this raised draft with the defendant, and had credit for the full amount. The defendant forwarded the draft to its New York correspondent, the Bank of the Republic, and that bank presented it at the Manhattan Bank, which paid the full amount of $3,462.40, and charged that amount to the plaintiff. On the 14th of November, the defendant inquired of the plaintiff by telegraph for what amount the draft No. 9,609 was issued, and the plaintiff at once replied that it was issued for seventeen dollars. On the same day the defendant wrote the plaintiff acknowledging the receipt of the telegram, and saying that Watson had deposited the plaintiff’s draft for $3,462.40 on November 3d, and bad drawn a part of it, and that defendant bad forwarded the draft to New York, and the same had been paid by plaintiff’s correspondent, and closing as follows: “ Please procure the draft from your correspondent, make affidavit to correct amount, and send it with the draft direct to me, and I will remit difference. Please do not make this matter public, as we hope to catch Watson.” Two days later the plaintiff answered that the draft had been ordered returned, and that the defendant’s wishes should be strictly complied with. The plaintiff procured the draft from its correspondent, made affidavit to the correct amount, and on November 21st sent the affidavit and the draft to the defendant, and did not make the matter public. November 25th the defendant acknowledged its receipt of the draft and affidavit in a letter in which it also raised the question whether the .signature of plaintiff’s cashier to the draft was not also forged.
    Replying to this letter two days later, the plaintiff, among other things, said: “We have complied with your every request, even to keeping the matter strictly confidential, and now beg to request that you remit immediately. The excess stands charged against us on the books of the Manhattan Bank and we desire to be placed in funds that it may be corrected. * * * Unless immediately placed in funds, as promised by you, our remedy will be to refuse credit to the Manhattan, who paid the draft on your endorsement, and that of the National Bank of the Eepublic, your New York agent, and it should be refunded at once.”
    Plaintiff followed its letter by the following telegram to defendant on November 29th: “ Remit difference in draft, or return it, with affidavit attached, by express to-day.” Thereupon, and on December 2nd, the defendant returned to plaintiff the draft and affidavit, which retained them. On the same day that plaintiff demanded the , return of the draft and affidavit it wrote to the bank of the Manhattan Company, reciting the facts and notifying it that the plaintiff would not recognize the payment of the draft for moré than the original amount, to wit, seventeen dollars. Nevertheless the Manhattan Company, in the next account current rendered by it, charged the plaintiff with the full amount of the raised draft Subsequently, by some arrangement between the Manhattan Bank and defendant, to which the plaintiff was not a party, the Manhattan Bank credited to the plaintiff, on account of this draft, the sum of $2,533.90. The defendant declined to pay the balance of $911.50 to plaintiff, and hence this action.
    
      George Gorham, for app’lt; Sherwan S. Rogers, for resp’t.
    
      
       Affirming 15 N. Y. State Rep., 630.
    
   Parker, J.

Three questions arc presented for consideration, and are determined as follows:

First. Plaintiff’s acceptance of, and subsequent compliance with, the proposition of the defendant obligated the defendant to pay to it the face of the raised draft, less seventeen dollars, the amount for which it was originally drawn.

Second. The subsequent transactions between the parties were in legal effect a rescission of such contract, and thus the plaintiff parted with” its right of recovery thereon.

Third. The action cannot be sustained as in effect one for money had and received as it does not appear that defendant received moneys belonging to the plaintiff, or to which it was entitled.

The defendant did not obtain plaintiff’s money, but rather that of the Manhattan Company. As the plaintiff had not requested payment of it beyond the amount of seventeen dollars, the sum paid in excess was the money of the Manhattan Company, which it could have recovered of defendant, but not of plaintiff. W hite v. Continental Bank, 64 H. Y., 316. Subsequently, it is true, it charged the plaintiff in its account current with such amount, but the act was without authority and did not affect the legal status of the parties.

The order should be affirmed and judgment absolute rendered, in favor of the defendant on stipulation.

All concur, except Bradley and Haight, JJ., not sitting.  