Opinion
January, 1899.
Lyman L. Settel, for appellant.
Menken Brothers (Percival S. Menken, of counsel), for respondent.
The plaintiff, having an account with the defendant, deposited with the bank a certified check, which was received by it and credit given to the plaintiff therefor in her pass-book. In the course of transmission to the bank on which it was drawn, the check was lost, and the defendant taking the position that it was the property of the depositor and not of the bank, refused to recognize the credit which it had given the plaintiff therefor when the deposit was made. The plaintiff accordingly brought this action for the recovery of the amount of the bank's indebtedness to her, and judgment was awarded in her favor.
The law is well established in this state that upon a deposit being 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. Metropolitan National Bank v. Loyd, 90 N.Y. 530; Cragie v. Hadley, 99 id. 131; People v. St. Nicholas Bank, 77 Hun, 159, 164, 178. The rule under certain conditions is subject to qualification, to which, however, it is unnecessary to refer, as such conditions do not exist here.
There was some evidence offered in the case tending to show that the check in question was not received by the bank and credited as money, but there was a conflict upon this point, and in this regard, as well as in all other cases where there was any issue of fact, the question must be held to have been resolved by the trial justice in favor of the plaintiff, to whom judgment has been awarded. The case, therefore, is one which comes directly under the rule of law above stated. When the check in question was deposited, it became the property of the bank, and the latter thereupon became indebted to the plaintiff for its amount, and the recovery of the check and the sum due thereon was a matter of concern to the defendant alone. The acts of the plaintiff in facilitating the efforts of the bank in that regard were gratuitous, and cannot be used to her disadvantage. The judgment was right, and should be affirmed.
GILDERSLEEVE and GIEGERICH, JJ., concur.
Judgment affirmed, with costs.