
    William E. Anderson et al., Ex'rs, App'lts, v. The Dundee State Bank, Resp't.
    
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    1. Bills and notes—Indorsement in assumed name.
    If a payee adopts an assumed name, and indorses such assumed name upon a draft, it is not a writing purporting to he the act of another within the meaning of the provisions of the Penal Code:
    3. Same.
    In such case, where one obtains the draft as an innocent purchaser for value, he obtains good title thereto, and is entitled to recover thereon against the drawer.
    Appeal from an order entered in Yates county cleric’s office denying plaintiff’s motion for a new trial on the minutes.
    
      John Gillette, for app’lts;
    
      Briggs & Sunderlin, for resp't.
    
      
       Reversing 47 St. Rep., 447.
    
   Lewis, J.

The defendant is a banking association organized under the laws of the state of New York, doing business'"'at the village of Dundee, in the county of Yates. On the 9th day of February, 1885, the defendant made and delivered to one John 0. Peck their bill of exchange in writing, dated on that day, and directed to the Importers & Traders’ National Bank of New York, and thereby required said bank to pay to the order of John 0. Peck $300. On the 23d day of February, 1885, the draft was presented at the banking house of the testator, Anderson, with the indorsement of the name John G. Peck thereon, by a man who represented himself to be James Bell. It was purchased for full value by the banking house of Anderson, and was thereafter and on the 27th day of February, 1885, presented to the Importers & Traders’ Nation?! Bank for payment. Payment was demanded, which was refused, and the said draft was then and there duly protested for non-payment, with due notice to the defendant, and this action was thereupon brought to recover the amount of the draft. The defendant defends and says that John 0. Peck presented and delivered to it a check purporting to be made and drawn by one Reed, bearing date the 7th day of February, 1885, on the Geneva National Bank, payable to Jones & Ayres or order, for the sum of $965, which appeared to be indorsed by the payees thereof, and that the defendant paid to said Peck therefor at his request the draft in suit and $664 in currency ; that the said Peck, to induce defendant to take and accept the same, and to issue the draft therefor, falsely and fraudulently stated and represented to the defendant that the check was genuine, when it was in fact with its indorsements a forgery and of no value.

We assume, in deciding this appeal, that John C. Peck presented the forged check to the defendant and that the defendant issued the draft in suit to him, payable to his -order. Both the complaint and answer so state the facts to be. The defendant’s cashier, it is true, testified that he had learned since that the person who presented the forged check was not John C. Peck. How or when or where he got the information he does not state. This evidence cannot avail to contradict the admissions in the pleadings. When Peck presented the forged check to the defendant, the signature “ John C. Peck ” was indorsed upon it Defendant's cashier so testifies, and he is not contradicted. The draft was presented to the plaintiff by a person who was introduced to him by one of his customers as James Bell. When so presented the name John C. Peck was indorsed upon it, and the person presenting it then and there wrote due name of James Bell upon the draft under the name of Peck and the plaintiff purchased the same, paying full value therefor in the course of business. The indorsement of John C. Peck upon the check and upon the draft and the name of James Boll written as aforesaid upon the draft were all in the same handwriting, so the expert witness, Hoyt, testified without objection, and he is not contradicted. If we should assume that the person who presented the forged check to the defendant and obtained the draft did not give his true name to the defendant, to be inserted as payee, but directed an assumed name to be inserted and thereafter indorsed that name upon the draft, the draft then so indorsed became negotiable and would pass by mere delivery to an innocent holder for value. The person who presented the check and procured the draft was a stranger to defendant. Ho was not required to be identified. The defendant consented to issue and put in circulation the draft, payable to the order of John 0. Peck, relying simply and only upon the word of an entire stranger that that was his name, and under circumstances, as appears from the testimony of the defendant’s cashier, somewhat calculated to excite in the mind of a cautious banker suspicion as to the bonafides of the transaction.

It being shown, as we have seen, that the same person wrote all three of the indorsements, a prima facie case was made that the person who obtained the draft was the same person who sold it to the plaintiff. While, under the evidence, we may be left in doubt as to the true name of the person who obtained the draft, it is not disputed that he informed the defendant that his name was John C. Peck, and that the defendant issued the draft with that name as payee. If it was not his true name, it was the name he then assumed, and we are unable to sec that it concerns the defendant whether it was his true name or an assumed name, if it be shown that he indorsed the name he had chosen upon the draft and negotiated it to an innocent purchaser for value. Brown v. Butchers & Drovers' Bank, 6 Hill, 443; David v. Williamsburgh Ins. Co., 83 N. Y., 265; McDuffie v. Clark, 39 Hun, 166.

“ Parties sometimes adopt and use fictitious names as their own, and when there is a real party in existence who uses a fictitious name as descriptive of and with intent to bind himself, it is the same in law as if it were his real name, and he may be sued by the holder and declared against as having contracted by such adopted name.” Daniel on negotiable Instruments, vol. 1, § 141.

When the payee’s name to a draft is fictitious, the acceptor is not concerned, for the reason that the drawer has directed him to pay the money to the order of that name, and if it be thereon indorsed by the drawer or by the holder, he would fulfil that direction and discharge the debt.” Ibid, vol. 1, p. 119.

In Chalmer on Bills and Notes (by Benjamin), page 144, the text states the doctrine, citing a number of authorities to sustain it, that where B., at the request of Y., makes a note payable to C.’s order; C. is a fictitious person, but B. does not know this; X. indorses the note in C.’s name, and it is negotiated to D., a bona fide holder, for value without notice, D. can sue B.

Had Peck paid full value for the draft and caused to be inserted as payee an assumed name, and indorsed such assumed name on the draft and sold it under like circumstances to the plaintiff, it would not be contended but that the defendant would be liable upon the draft. This is not a case of a draft payable to a fictitious person to the knowledge of the drawer. In such a case the draft can be treated as payable to bearer. Here, in order to become negotiable, the indorsement of the name designated as payee was requisite; but it was not essential that the name was the one by which the payee was commonly known. If a payee adopts an assumed name and indorses such assumed name upon a draft, it is not a writing purporting to be the act of another within the meaning of the provisions of the Penal Code. It is simply a case of using an assumed name without any design of defrauding the payee. But, as we have seen under the pleadings and proofs, the draft appears to have been issued by the defendant,to John C. Peck as payee, and if his name was duly indorsed upon it when presented for discount to the plaintiff, the plaintiff, being an innocent purchaser for value, got good title tq the draft, and was entitled to recover thereon against the defendant.

The vital and controlling question is, did the person who procured the draft of the defendant indorse the name “John C. Peck” upon it There was no direct evidence of the genuineness of the indorsement upon the draft,but if it was proven that the name John C. Peck upon the back of the check was in the handwriting of Peck, so as to j ustify its use as a standard of comparison, then the testimony of the expert, Hoyt, proved the genuineness of the indorsement on the draft.

By presenting the check with his name upon it and stating to the cashier that his name was John C. Peck, he conceded it to be his genuine signature and was thereby estopped from thereafter claiming that it was a forgery.

The defendant, seeing the check so indorsed and being assured by the person presenting it that his name was John C. Peck, accepted it and indorsed it to the Geneva National Bank, the drawee, for payment. After this evidence was in, the record states: “The plaintiff offered in evidence the signature, of John 0. Peck upon the back of the check of February 7th, identified by the witness; received, marked plaintiff’s Exhibit No. 2.” Thereupon, the expert Hoyt was called and was, without objection, allowed to testify, after comparing the signature upon the draft with the signature upon the check, that they were written by the same person ; and the draft with its indorsement and the certificate of protest attached were offered and received in evidence without objection.

The defendant, later in the trial, used the check as in evidence, for the purpose of proving that the name of the maker and payee were forgeries, but did not offer any evidence to negative the plaintiffs’ proof as to Peck’s signature upon the check and draft.

It must be held that the proof established the controlling fact, that the person to whose order the defendant made the draft payable indorsed it and that the plaintiff in good faith took it and paid full value for it. If these views are correct, it follows that it was error to direct a verdict for the defendant, and the order appealed from should be reversed and the verdict set aside and a new trial granted, with costs to abide the event.

Dwight, P. J., and Macomber, -J., concur.  