McFarland, J., dissenting. — I dissent. This is an appeal by defendant from a judgment in favor of plaintiff, and from an order denying a motion for a new trial. The complaint contains six counts. The first avers that on January 19, 1885, defendant “ made and [470]executed unto the plaintiff its certain paper writing, whereby it promised to pay unto plaintiff, or his order, the sum of two hundred and fifty ($250) dollars”; and that afterwards plaintiff demanded payment of the same, and defendant has not paid the same, nor any part thereof. There is no averment of the specific character of the “ paper writing,” or that it was ever delivered to plaintiff, or that he ever had possession of it, or that he was ever the owner or holder of it, or that he ever presented it at the bank of defendant for payment. The other five counts are similar to the first, except that in each count a “ paper writing ” of a different date, and for a different amount, is averred. The largest amount named in either count is three hundred dollars; and the latest date the second day of March, 1885. The aggregate amount of all the paper writings was $1,250, for which sum, with interest, judgment was rendered.
At the trial, plaintiff, to- prove the averments of his complaint, procured from the custody of defendant six paper writings, each marked “ Paid ” on its face, and introduced them in evidence, against the objections and exceptions of defendant. They proved to be paper writings in the form of certificates of deposit, in which plaintiff was named as depositor. The one first in date — and the others were the same, mutatis mutandis—■ was as follows: “H. Honig has deposited in this bank $250 in gold coin, payable to self or order on return of this certificate properly indorsed." It was properly signed by the officers of the bank, and was indorsed' "N. Honig, by S. A. Peyser.” Across its face it was marked with a blue stamp: “ Paid 23 Paying Teller.”
The undisputed facts of the transaction are these: On the said 19th of January, — the date of first'certificate, — one S. A. Peyser went into the bank of defendant and deposited $250, and took for it a certificate of deposit. It is the custom of the bank, when a man wants [471]a certificate of deposit, to request him to write his name in a signature book, or book of identification. Opposite his signature is written the number of the certificate issued him, with date, amount, etc., so that when it is presented for payment, the paying teller, by comparing the signature by which it is indorsed with the signature previously written in the book, may see that they are the same, and that therefore the certificate is “ properly indorsed.” In accordance with this requirement, Peyser wrote in the signature book “ N. Honig, by S. A. Peyser,” under the heading “To Whose Order,” and the certificate was issued and delivered to him with “ N. Honig ” named as depositor. In a few days Peyser returned with the certificate indorsed just as written in the signature book, — “ N. Honig, by S. A. Peyser,” — was paid the money, and delivered up the certificate to the bank for cancellation. Shortly afterwards he made another deposit, and received another certificate in the same way, which, in a few days, was paid to him in like manner; and so on, until the six certificates had been thus issued and paid, except that one of them was payable to “ N. Honig, per S. A. Peyser,” and another was also indorsed by a firm called “ Davis & Co.,” and seems to have passed through the clearing-house. Each time Peyser wrote in the signature book “ N. Honig, by S. A. Peyser,” and the certificate was thus indorsed before payment. Each certificate was paid before its successor was issued, so that the greatest amount which Peyser ever had at the bank at any one time was three hundred dollars.
While these transactions were taking place, the plaintiff, Honig, knew nothing whatever about them. He had never authorized Peyser to deposit any of Ms money at that bank, and did not know that Peyser had made any deposits there of any character. Honig had never been a customer of the bank, had no account there of any kind, and had never himself received from it any [472]certificate of deposit, and he was entirely unknown to the bank. But after the transactions were concluded, and all the certificates had been paid and taken up by the bank, the said Peyser died; and a few months after his death, plaintiff, having then learned of these transactions, demanded of the defendant that it should pay all of said certificates over again to him; and the demand being refused, this action was commenced. He made no proof at the trial that any of the money deposited by Peyser belonged to him (plaintiff), but he relied entirely on the mere fact that his name was in the certificates as depositor.
Upon these facts, I do not think that plaintiff was entitled to judgment, and therefore, I do not defem it necessary to discuss at length appellant's two points, that the complaint was not sufficient, and that the certificates were not admissible in evidence. I do not see how the principles of law, applicable to the peculiar qualities of negotiable paper, can be invoked in this case. Those principles apply, ordinarily, when the rights of sureties, indorsees, guarantors, and third persons generally, intervene. If the certificates invoked in this case had not contained the words “ or order,” or any equivalent words, the claim of plaintiff would not have been of any less legal value. If it be shown that a negotiable instrument made by A to B was without consideration, B cannot maintain an action upon it against A. Between the original parties, there is not often any difference whether a bailment or debt be evidenced by a simple receipt or a negotiable promise, except that in the latter case a consideration is presumed. If the money deposited by Peyser with defendant was not the money of plaintiff, upon what principle can he recover in this action? If he had obtained possession of the certificates before payment, and then had demanded payment, or had indorsed them to third parties, different questions might have arisen. The only parties to the contract [473]were the bank and Peyser; part of that contract was that the certificates should have the indorsement which had been written in the book of identification; they were returned with that indorsement; the money was paid, and the instruments were taken up and canceled; and thus the contract was executed and ended before there was any assertion to the claim—real or pretended —of plaintiff.
The only position having any strength which plaintiff could take is, that the certificates, being in form negotiable, import a consideration; that is, make aprima facie case of ownership of the money by plaintiff. Plaintiff, however, in his testimony, entirely repudiates the agency of Peyser in every part of the transaction. He says that he knew nothing about the certificates until after Peyser’s death. But if Peyser was not plaintiff’s agent in receiving the certificates, then the insertion of plaintiff’s name therein goes for naught, and he can base no right thereon. On the other hand, if, notwithstanding his testimony, he seeks now to adopt and ratify the agency of Peyser, he must adopt the whole of that agency or none. (Story on Agency, sec. 250.) But suppose it be assumed that the money belonged to plaintiff, and was in the possession of Peyser, as his agent, how would the case stand then? It has been held in some cases that an original bailor may maintain detinue against a second bailee; but never, we apprehend, where the second bailee has safely redelivered the thing bailed, according to his contract, to the first bailee before notice and demand by the original bailor. (Story on Bailments, secs. 105-107.) If B, having the custody of money of A, intrusts it to C for.temporary safe-keeping, and 0 returns it to B before any notice or demand by A, then A has no action, either ex contractu or ex delicto, against C, because G has neither broken a contract nor done a wrong.
However, I think that no case can be found where an [474]action has been successfully maintained directly upon a negotiable instrument not lost or destroyed before cancellation, when the plaintiff had never been in possession of the instrument, and had never known of its existence until after its existence had ended. Here the appellant was in possession of the instruments sued on at the time the action was commenced, claiming to own them as canceled obligations. And it has been directly held, in Crandall v. Schroeppel, 1 Hun, 557, that a party claiming to own a promissory note in the possession of another, who also claims to own it, cannot maintain action on it, and that the title to the note cannot be settled in such an action. Of course, this case differs widely from the common case where a man opens a general account with a bank, and a contract relation between the parties exists from the start. There the original party alone has the right to draw against the account, no matter by whom he may send deposits. It no doubt would have been more regular and safer if appellant had required Peyser to take the certificates in his own name, and dangerous complications might have arisen; but under the facts here, in my opinion, there is no phase of justice, and no rule of law, which compels appellant to repay these dead and canceled instruments.