Lumsdon v. Gilman

30 N.Y.S. 1124, 88 N.Y. Sup. Ct. 526, 63 N.Y. St. Rep. 261, 81 Hun 526

Opinion

FOLLETT, J.

The only issue of fact in the case was, what was the agreement between the plaintiff and the defendants’ clerks? The learned trial justice submitted this issue to the jury, which found in favor of the defendants. The verdict controls the rights -of the litigants, and it underlies and cuts off the questions which the plaintiff seeks to raise on this appeal. Whether the defendants were negligent in not knowing the true state of the account of J. J. Nicholson & Sons, and the ordinary effect of the payment of a check or draft by the drawee to the holder, become immaterial questions, in the face of the agreement as found by the jury. The fact that the defendants had not returned the draft, but had forwarded it to the assignee of J. J. Nicholson & Sons, did not give the plaintiff the right to recover the amount for which it was drawn. It had never been demanded, and if the plaintiff demands it, and the defendants • fail to deliver it, the question of the plaintiff’s right to recover damages can be raised in another action, but not in this. The judgment, and order should be affirmed, with costs.

PARKER, J., concurs.

VAN BRUNT, P. J.

It is apparent from plaintiff’s own evidence -

that the bookkeeper, in accepting this check after business hours, was acting without authority, and also that he accepted it subject to-Mr. Gilman’s approval. Upon the undisputed evidence, no right of recovery was shown.