Schreiber v. Finan

28 Misc. 560, 59 N.Y.S. 594

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 15, 1899
• Status: Published

Opinion

MacLean, J.

From a stipulation received herein in lieu of evidence, it appeared that the plaintiff in good faith and for value, paid in money and merchandise, acquired a check on the Bowery Bank, drawn by one S. payable to the order of a certain T., who having’ indorsed the same in blank delivered it in due course to the defendant, who lost it, either accidentally or by theft; that after its purchase by the plaintiff, payment of the check was stopped by the drawer at the request of the defendant; that upon its being exhibited to the defendant for explanation, the defendant took the check and refused to return it, claiming that it was his property. Upon these facts the learned justice rightly found that the defendant had converted the check, rejecting his claim that he was entitled to its possession as property lost by or stolen from him, and of which the finder or the thief could give no title; for, it being the policy of the law merchant that negotiable paper of any kind shall have unrestricted circulation, and that persons acquiring it in good faith may do so in safety without the liability of having their rights questioned, an exception in favor of all negotiable instruments was engrafted early on the rule that no one can acquire a title to a chattel personal from a man who has himself no title to it (nemo dat qui non habet). The plaintiff was, therefore entitled to have it stated in tbe judgment that the defendant was subject to arrest and imprisonment (Oonsol. Act, Laws of 1882, chap. 410, § 1386), and the judgment must be reversed. Searing v. Goodstein, 11 Daly, 236.

Fbeedmae, P. J., and Leventbitt, J., concur.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.