
    Frederick Haas, Resp't, v. Pietro Altieri, App'lt.
    
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed February 6, 1893.)
    
    1. Replevin—Estoppel.
    Where the drawer delivers a cheque to a third party upon his promise to deliver it to the person for whom it was intended, such party becomes a bailee for such person; and in replevin by such person for the cheque, such party is estopped to assert a right in himself to the cheque.
    2. Same—Pleading-.
    In replevin in the detinet a general denial puts in issue the property and the right of possession.
    Appeal from judgment of the general term of the city court affirming judgment on a verdict.
    The opinion gives the case.
    
      Franklin Pierce, for app’lt;
    
      Samuel Greenbaum, for resp’t.
    
      
       Affirming 47 St. Rep., 121.
    
   Pryor, J.

The action being replevin in the detinet, the general denial puts in issue as well the title of the plaintiff as the wrongful detention by the defendant. Griffin v. R. R. Co., 101 N. Y., 348; 1 St. Rep., 56.

It is not to be doubted that replevin lies for the possession of a cheque. Goshen Nat. Bank v. Bingham, 118 N. Y., 349; 28 St. Rep., 702; Barnett v. Selling, 70 N. Y., 492. It must beso, upon principle; since replevin may be brought for any personal chattel susceptible of description and seizure; and that a cheque is property is a self-evident proposition, equally with a note, or draft, or bill of lading. Nichols v. Mase, 94 N. Y., 160, held only that a lease in custodia legis is not the subject of replevin; and Barnett v. Selling, supra, that neither is a cheque “ paid and returned as a voucher to the maker.” It is inconceivable that value may be predicable of a cheque so irrecoverably extinct.

Tim real question in controversy is whether the plaintiff had such title to the cheque as would sustain the action.

It is elementary that to support replevin the plaintiff must have such an interest in the chattel as gives him the right of immediate possession. And the title must be a legal title, not a right enforceable only in equity. Pettibone v. Drakeford, 37 Hun, 628; Fulton v. Fulton, 48 Barb., 581; Deeley v. Dwight, 132 N. Y., 59; 43 St. Rep., 409.

What was plaintiff’s title to the cheque?

A thousand dollars was payable to plaintiff by Lovell. For this sum Lovell drew the cheque in controversy to the order of defendant’s firm and by them indorsed to plaintiff, and gave it to defendant for delivery to plaintiff. Instead of so delivering it, defendant erased the indorsement to plaintiff, and deposited it in his own bank. Meanwhile, however, discovering that defendant would not deliver the cheque to plaintiff, Lovell countermanded its payment. Upon this state of fact, why did not the legal title to the cheque vest in the plaintiff ? Lovell, the drawer, had passed it to defendant for delivery to the plaintiff, and the defendant, by his indorsement to plaintiff, had transferred to him the property with the right of possession. Thus Lovell had parted with the possession and dominion of the cheque, with the intent to transfer both to the plaintiff. Why was not this concurrence of act and intent sufficient and operative to vest title in the plaintiff? The answer is, first, that a delivery to plaintiff was indispensable to the transfer of title; and, secondly, that the erasure of the indorsement to plaintiff defeated that effect. But, the delivery was to defendant as a mere intermediary between Lovell and plaintiff, and so, in legal effect, the delivery to defendant was a delivery to plaintiff. Nor could the defendant, by a mere wrongful erasure of the indorsement, intercept the passage of the title to plaintiff, any more than by the destruction of the cheque he could accomplish that result. Such destruction, of itself, would have constituted a conversion.

But wherever, in fact, the title may have resided, the defendant was precluded from saying that it was not in the plaintiff.

The facts, as found by the jury under the charge were: That Lovell gave the cheque to the defendant as the property of the plaintiff and for delivery to the plaintiff; that the defendant accepted possession of the cheque as the property of the plaintiff and upon an express promise to deliver it to him. By what right could the defendant deny the title of the plaintiff and assert an adverse interest in himself? Upon every principle of estoppel he was precluded from assuming any such position. He took upon himself the character of bailee for the plaintiff; as such, was bound to deliver the cheque to the plaintiff; and by all authorities and the plainest principles he will not be heard to say, as against the plaintiff, that the cheque is his property, nor that he has any interest in it in hostility to the plaintiff’s title and right of possession. 41

For the purposes of the action, then, the title of the plaintiff was irrefragable.

But, it is urged that the stoppage of payment of the cheque made it valueless. Not so, however, since the stoppage was not against the plaintiff; and, at all events, he still had a right of recourse against the drawer.

As a ground of dismissal it was insisted that the return pendente lite of the cheque to Lovell sufficed to defeat the action; but in truth this was a substantive and independent wrong on the part of the defendant, and of itself subjected him to liability. It is fundamental that a right of action once vested can be extinguished only by release or satisfaction.

It is further contended that Lovell was the proper person to sue; but as owner of the cheque the plaintiff was the real party in interest

As to the point that the jury applied an erroneous rule of damages in allowing plaintiff the face value of the cheque, we answer that this is the prima facie measure of compensation, Booth v. Powers, 56 N. Y., 22; Western R. R. Co. v. Bayne, 75 N. Y., 1, and that defendant failed to reduce the apparent amount of recovery.

An examination of appellant’s exceptions to the charge and the evidence satisfies us that they are not of merit.

Judgment affirmed, with costs.

Daly, Gh. J., and Bischoff, J., concur.  