Susquehanna Valley Bank v. Pickering

26 N.Y. Sup. Ct. 230

Opinions

Learned, P. J.:

It is not pretended that Pickering was guilty of any fraud, or that he was a party to the fraud done by another person.

By indorsing the note he became liable, if charged as an indorser, whether the note was genuine or not. But he has never been charged as an indorser, and is, therefore, not liable as such.

Nor did he receive any of the money. In the case of Bank of Commerce v. Union Bank (3 N. Y., 230), the recovery was not on the bill or note, but was for money paid to the defendant by mistake. So, also, in the case of White, v. Continental Bank (64 N. Y., 316). But, as Pickering did not receive any of the money, he is not liable to an action as for money paid by fraud or mistake. That is always an action, equitable in its character, based on the fact that the defendant has money which, in justice, he ought not to retain as against the plaintiff. No such claim can exist against Pickering.

The judgment should be reversed and a new trial granted, costs to abide the event.