criminal, but I do not see how that affects the question) represented to plaintiff that this particular property was owned by one Homer E. Remsen. We may assume that Remsen was a fictitious person. But Bushnell executed the bond and the mortgage on his own property, in the name of Remsen, and delivered them to the plaintiff. True, she left the papers with him, and he did not record the mortgage; but that was a matter between her and Bushnell, not brought about by anything the bank did. So, I take it, Bushnell would not be heard to deny the validity of the bond and mortgage. He signed it in a fictitious name; but he was in no position, as against plaintiff, to dispute its validity. It seems to me the bond was the bond of the owner of the premises, and the mortgage was a lien upon the premises, precisely as if Bushnell had executed it in his own name. He received the check, indorsed by plaintiff to the order of Homer E. Remsen-he forged the name of Remsen, adding his own name-and received the proceeds. It seems to me there is much force in the claim that plaintiff suffered no legal loss for which the bank is accountable by reason of the payment to Bushnell. [3] Again, I think the plaintiff herself brought about her own loss. The defendant bank did not know Homer E. Remsen. The plaintiff personally came to the bank, asserting that Homer E. Remsen was an existent person-that she had agreed to invest her money on his bond and mortgage, and it was on her request that the check was issued and indorsed for her signature, so as to be payable to Homer E. Remsen. I think that she is bound by her representation to the bank that Remsen was a genuine person. This is not a case where some third party-Bushnell, for instance-inserted a fictitious name on the check. The plaintiff did it herself deliberately. It was her own personal action which led to the making of the check payable to Remsen. With the making of the check her personal dealings with the bank ended. That she was thereafter swindled by Bushnell does not seem to me to be chargeable to the bank. Her representation to the bank at the outset seems to me the causa causans of the loss. See Jarvis v. Manhattan Beach Co., 53 Hun, 362, 6 N. Y. Supp. 703; on subsequent appeal, 75 Hun, 100, 26 N. Y. Supp. 1061, affirmed 148 N. Y. 652, 43 N. E. 68, 31 L. R. A. 776, 51 Am. St. Rep. 727; Manhattan Beach Co. v. Harned (C. C.) 27 Fed. 484. In these cases the corporation was held to be estopped by reason of the fact that it issued the stock certificates in the fictitious name and, notwithstanding the fact that the dishonest clerk thereafter transferred them by forging the fictitious name, it was held that the original representation of the company was the cause of the loss. N. Y. & N. H. R. Co. v. Schuyler, 34 N. Y. 30-59; F. A. Bank v. F. S. & G. S. F. R. Co., 137 N. Y. 231, 33 N. E. 378, 19 L. R. A. 331, 33 Am. St. Rep. 712; M. L. Inc. Co. v. F. S. & G. S. F. R. Co., 139 N. Y. 146, 34 N. E. 776; Knox v. Eden Musee Co., 148 N. Y. 441, 42 N. E. 988, 31 L. R. A. 779, 51 Am. St. Rep. 700. Judge O'Brien in the Jarvis Case in the Court of Appeals referred to the similarity between the rule as applied to commercial paper (148 N. Y. 659, 43 N. E. 68, 31 L. R. (182 N.Y.S.) A. 776, 51 Am. St. Rep. 727), and Judge Barrett in the General Term on the first appeal considered the rule with regard to certificates of stock as analogous with that concerning commercial paper (53 Hun, 365, 6 N. Y. Supp. 703), as did Judge Wallace in the Harned Case. The judgment should be reversed, and a new trial granted, with costs to abide the event. The findings that the defendant bank did not use due and reasonable care and diligence, and that said defendant was negligent in paying the draft, are reversed as contrary to the evidence. JENKS, P. J., and JAYCOX, J., concur. RICH and PUTNAM, JJ., dissent. RICH, J. (dissenting). Plaintiff had been a depositor in defendant's bank for several years, and on the 20th of October, 1916, had a balance to her credit in the interest department of the bank of $1,113.03. On that day she went to the bank and informed the cashier that she wished to draw a draft for $1,100 payable to Homer E. Remsen, who was to receive the money on a bond and mortgage. The defendant's cashier told her to draw the draft to her own order and to indorse on the back "Pay to the order of Homer E. Remsen," and he told her that it would be a receipt for the money and it would be payable to only Homer E. Remsen. The cashier thereupon drew the check in that form, handed it to the plaintiff, who immediately took the draft to the lawyer through whom the loan was made, and there indorsed the same to the order of Homer E. Remsen as directed by the defendant's cashier. She thereupon delivered the draft to the lawyer and received from him a bond, purporting to have been executed by Homer E. Remsen and Alice Remsen, his wife, and was told that the mortgage would be recorded. The lawyer at the same time. gave plaintiff a certificate of title to this property, signed by himself, and a fire insurance policy purporting to cover the property of Homer E. Remsen. There was no such person as Homer E. Remsen. The lawyer deceived the plaintiff in making the application for the loan, he forged the name of Homer E. Remsen and Alice Remsen to the bond and mortgage, he forged the notary's certificate, and he forged the name of Homer E. Remsen to the draft, presented it to the bank, and was paid the money, to wit, $1,100, and then killed himself. Relying upon the rule that the bank will disburse the money standing to the depositor's credit only upon his order and in conformity with his directions, and that the bank will ascertain that the indorsements upon the check are genuine, and that payments made upon forged indorsements are at its peril unless it can claim protection upon some principle of estoppel (Shipman v. Bank of the State of N. Y., 126 N. Y. 318, 27 N. E. 371, 12 L. R. A. 791, 22 Am. St. Rep. 821), plaintiff seeks to recover the balance to her credit. It seems that Bushnell, the lawyer who forged the draft, was the owner of the premises, and appellant argues that the plaintiff intended that the draft should be payable to the order of the person who owned the property and executed the bond and mortgage, and that person was Bushnell, so that his indorsement was not a forgery and the defendant was not liable, that the proceeds of the draft went where she intended them to go, and that in return she received the bond and mortgage. This contention is not borne out by the facts. She thought she was investing her money upon the bond and mortgage of Homer E. Remsen and Alice Remsen, and she did not receive the bond and mortgage she supposed she was purchasing. In support of its contention, however, the appellant cites, among other cases, Hartford v. Greenwich Bank, 157 App. Div. 448, 142 N. Y. Supp. 387. In that case the swindler made very elaborate preparations for defrauding his employer. He procured to be printed billheads bearing the name of James Wilson and the address, Room 1012, Fuller Building, New York. He rented a post office box in the name of James Wilson. He opened an account in the defendant bank under the name of James Wilson. Having thus prepared the way, the swindler proceeded to defraud the tea company into giving him a check for $1,543.50. He made out a bill upon one of his fictitious letter heads, purporting to show that James Wilson had sold goods to the value stated to the tea company. Thereafter in due course a check for the amount indicated was made out to James Wilson, signed, and mailed. There was an actual person calling himself James Wilson, although that was not his real name, and it was that person to whom the tea company intended its check should be paid. The Hartford Case seems to be based upon the ground that the check was made payable to the "imposter" himself. In the case at bar the plaintiff never intended that the draft should be payable to the person who obtained the money upon it. True, the payee named proved to be a fictitious person, but this was unknown to plaintiff. As was said by Mr. Justice Smith in a well-considered opinion in United Cigar Stores Co. v. Am. Raw Silk Co., Inc., 184 App. Div. 217, 219, 171 N. Y. Supp. 480, 482: "The Hartford Case, however, is a border-line case, and should not be extended beyond the facts thereof." Plaintiff supposed she was loaning money to the person to whom she made the check payable; it was not indorsed by the intended payee and no title passed. Shipman v. Bank of the State of N. Y., supra; United Cigar Stores Co. v. Am. Raw Silk Co., Inc., supra. Homer E. Remsen was a fictitious person, created by Bushnell; he never represented himself to be Remsen, and the plaintiff had no knowledge that Bushnell owned the property described in the mortgage. In a word, it was the duty of the defendant to know that the indorsement upon the draft was the genuine signature of Homer E. Remsen. While the slightest inquiry would have disclosed the forgery, it was content to pay the draft, presumably relying upon the indorsement of Bushnell, and now seeks to charge plaintiff's account with the amount. This I do not think it could do. I must therefore vote to affirm the judgment. PUTNAM, J., concurs. (111 Misc. Rep. 675) (182 N.Y.S.) READE v. HALPIN et al. (Supreme Court, Special Term, Albany County. May 8, 1920.) 1. Pleading 350 (1)—Motion for judgment on pleadings may be made at Special Term. Under Code Civ. Proc. § 547, providing for judgment on the pleadings on motion at any time after issue joined, such motion can be made at Special Term, as well as at the opening of the trial. 2. Pleading 350 (3) —On motion for judgment, unamended complaint, after dismissal as to one defendant, should be considered with the full record. On a motion for judgment on the pleadings by two defendants, after the complaint had been dismissed on the merits as to a third defendant, following a verdict in his favor, the complaint, though not formally amended, should be considered in the light of the facts shown by the record. 3. Malicious prosecution 16-Malice, want of probable cause, and failure essential. A "malicious prosecution" is one that is begun in malice, without probablé cause to believe it can succeed, and which finally ends in failure. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Malicious Prosecution.] 4. Malicious prosecution 42-Where action of prosecutor is lawful, actions of procurers are remote. Where the actions of the actors in the proceedings as they appeared upon the record are lawful and proper, and their acts are the proximate cause of the proceedings, the acts and motives of those who procured the acts are immaterial, because remote, and do not sustain an action for malicious prosecution. 5. Pleading 350 (3)—Verdict for one defendant presumed based on finding probable cause and absence of malice, on motion for judgment by remaining defendants. On a motion for judgment on the pleadings in an action for malicious prosecution by two remaining defendants, after the defendant who instituted the proceeding had been dismissed, following a verdict for him at a trial in which the jury disagreed as to the other two defendants, it must be presumed that the jury acquitted the one defendant of being a conspirator, of having lack of probable cause, or of having been malicious, so that the acts of the other two defendants became immaterial, and they were entitled to judgment. 6. Malicious prosecution 56-Insanity proceedings by superintendent of poor presumed to be on own responsibility. Where the superintendent of the poor under the authority given him instituted insanity proceedings, it must be presumed that he acted on his own responsibility, not on the instigation or procurement of others. 7. Evidence 83 (1)-Certificate of examiners in lunacy presumed regular. On motion by defendants for judgment on the pleadings in an action for malicious institution of insanity proceedings, where there is no allegation to the contrary, the certificate of the medical examiners in lunacy must be presumed to have complied with the statute and to have been based on an examination made with reasonable care. 8. Malicious prosecution 47-Pleading alleging false representations to examiners in lunacy held insufficient. A complaint in malicious prosecution, which alleged that defendants made statements to the medical examiners in lunacy concerning plaintiff's history which were false and misleading, which did not allege which of the statements made were true or false, or in what respect any were misleading, and did not allege that the physicians were misled, or that the statements had any bearing on the matter, cannot be upheld. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 9. Malicious prosecution 25 (1)—Certificate of examiners probable cause for instituting insanity proceeding. The certificate of the two medical examiners in lunacy required by the statute furnishes reasonable and probable cause for insanity proceedings, in the absence of showing that the physicians were conspirators, or were engaged in any unlawful, malicious, or improper scheme or practice. Action for malicious prosecution by Helen Reade against William J. Halpin and others. On motion by defendants for judgment on the pleadings. Motion granted. See, also, 166 N. Y. Supp. 82; 181 App. Div. 916, 167 N. Y. Supp. 482; 180 App. Div. 157, 167 N. Y. Supp. 624. James Farrell, of Troy, for plaintiff. Thomas S. Fagan, of Troy, for defendants. HINMAN, J. This is a motion for judgment on the pleadings in favor of the defendants, dismissing the complaint herein on the ground that it does not state facts sufficient to constitute a cause of action. The action is one for malicious prosecution. The plaintiff alleges that she was a professed nun and a member of the defendant society; that while she was living at the convent of said society, in October, 1914 "the defendants, Freeman H. Munson, William J. Halpin, and said Society of the Sisters of St. Joseph of the City of Troy, through malice, and with intent to injure and defame this plaintiff, and to deprive her of her home and her religious associates, wrongfully conspired to obtain an order committing this plaintiff to an insane asylum, namely, to the Middletown State Hospital, and on said October 13, 1914, the defendant Freeman H. Munson made and verified à petition in lunacy proceedings against this plaintiff, addressed to Hon. Michael A. Tierney, judge of the County Court of the county of Rensselaer, a copy of which petition is hereto annexed, marked Exhibit A and made a part of this complaint. That the statements contained in said petition as the facts upon which the application was based were wholly false and untrue and misleading. That said Freeman H. Munson did not then know this plaintiff, and had no personal knowledge of plaintiff's acts or statements, but relied wholly upon the false information given to him in regard thereto by the defendants William J. Halpin and Society of the Sisters of St. Joseph of the City of Troy. That said information furnished and said statements in said petition purporting to describe the acts and statements of plaintiff were false and untrue and misleading, and were known by said Halpin and by said society to be false and untrue and misleading, and said false information was furnished by said Halpin and by said society through malice, and with the understanding, agreement, and intent that it should be used by the defendant Freeman H. Munson for the purpose of commencing said lunacy proceeding against this plaintiff. That on or about said date, namely, October 13, 1914, the defendant William J. Halpin, who was then the priest acting as chaplain at said convent of the defendant Society of the Sisters of St. Joseph of the City of Troy, furnished certain information to Dr. C. J. Patterson and Dr. James T. McKenna, two physicians who examined plaintiff at about that date in said lunacy proceedings. That said information was in several important particulars wholly false and untrue, and in other important particulars was misleading, and misrepresented the facts to the court to which said information was presented in said lunacy proceedings. That said defendant William J. Halpin then knew said statements to be false and untrue and misleading, but through malice, and with intent to injure this plaintiff, said statements were made and were presented to the said For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |