Von Fricken v. Bankers Trust Co.

254 A.D. 874, 4 N.Y.S.2d 928, 1938 N.Y. App. Div. LEXIS 8124

Opinion

— Plaintiff alleges in his complaint that the defendant collected the proceeds of seven cheeks drawn to his order and paid the proceeds over to another upon the latter’s forged indorsement. The answer sets up the Statute of Limitations, and defendant moved to dismiss on the ground that the causes of action are barred thereby. Order granting defendant’s motion to dismiss the amended complaint, and the judgment entered thereon, unanimously affirmed, with ten dollars costs and disbursements. No demand was necessary to perfect plaintiff’s right of action. A demand is a prerequisite to commencement of the limitation period where a bank has paid "on a forged instrument and seeks to impair funds of the maker on deposit, but there is no such impairment here and the gravamen of the action is conversion regardless of its form. (Leather Manf. Bank v. Merchants’ Bank, 128 U. S. 26; Glover v. National Bank of Commerce, 156 App. Div. 247; Wood v. Young, 141 N. Y. 211; Stacy v. Graham, 14 id. 492; hammer v. Stoddard, 103 id. 672, and Mills v. Mills, 115 id. 80.) Present — Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ.