#### Lyman G. Bloomingdale, Respondent, *v.*The National Butchers and Drovers’ Bank, Appellant.

(Supreme Court, Appellate Term,

January, 1901.)

Bills and notes — When a check is not payable to the bearer — Title does not pass by a forged indorsement of the payee.

Checks payable “ to the order of Bearer, B. Cohen ” and “ to the order of Bearer, Ennulot” are not payable to the bearer generally ■and therefore are not negotiable unless indorsed by the payee.

Title to checks, requiring indorsement, does not pass by a forged indorsemeent of the payee and where the maker thereafter pays the ■amount of them, in ignorance of the facts, he may recover the payment.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered' in favor of the plaintiff upon a trial had before the court and a jury.

The action is brought by the drawer of two checks to recover back the money paid out upon them, it being charged that the indorsements were forged.

Henry W. Kennedy (Henry M. Goldfogle and Alfred D. Lind,, of counsel), for appellant.

Horwitz & Samuels (Otto Horwitz, of counsel), for respondent.

*Per Curiam.****

The checks in suit were payable “ to the order of Bearer, B. Cohen,” and *“*to the order of Bearer, Ennulot,” respectively, and it is claimed by the appellant’s counsel that such checks are in legal effect payable to bearer, and hence were negotiable. We cannot, however, yield our assent to this proposition. The checks were not, as claimed, payable to a bearer “ generally,” but to a particular bearer, one to B. Cohen, and the other to En*595nulot, and, therefore, were not negotiable without the indorsement of the payee thereon. (1 Daniel Neg. Inst. (4th ed.), § 105; Tied. Com. Paper, § 243; Warren v. Scott, 32 Iowa, 22; see Neg. Inst. Law, §§ 27, 28.) The rule applicable to this question is stated by Daniel in his work on Negotiable Instruments in these words (§ 105): “If the bill or note be payable ‘to the bearer A. it is the same 'as if simply payable to A, and is not negotiable. But if payable to A. or bearer, it is the same as if payable to bearer, and so is payable to A. or holder.” The uncontradicted proof shows that the checks were payable to real persons who had rendered services to the maker, as tailors, and they were signed by him upon the representation of the forger that each of the payees was entitled to receive the amount of the check for work actually performed. The forger testified that, instead of delivering the checks to the payees, he indorsed their respective names thereon and got one Aaron Zwerdling to cash them; that he gave no part of the moneys so obtained to the payees or either of them, and that he had no authority from either of them, or the maker, to indorse the checks. Zwerdling, on the other hand, testified that he cashed the checks for the payees, but they denied indorsing them or receiving any part of the sums for which they were drawn. The jury resolved the conflict of testimony in favor of the plaintiff and we think upon a careful examination of the record that they were warranted in finding, as it must be assumed from their verdict they did find, that the indorsements were forged. Forgery of such indorsements being thus established, title to the checks in controversy did not pass, and the plaintiff, having paid the amount thereof to the defendant in ignorance of the facts, is entitled to recover back the moneys so paid. Citizens’ N. Bank v. I. *&*T. Bank, 119 N. Y. 195.

The counsel for the appellant urge that the trial justice erred in refusing to submit to the jury the question of the intent of the maker as to whether the checks in suit should or should not be payable to bearer. We think such refusal was proper. The rule invoked by the appellant’s counsel applies only to a case where the maker knows the payee to be fictitious and actually intends to make the paper payable to a fictitious person. Shipman v. Bank, S. N. Y., 126 N. Y. 318, 330. Here we have no such situation.

.Counsel for the appellant contend, finally, that the trial justice erred in sustaining an objection to a question put to the maker, *596on cross-examination, with a view of showing reimbursement to shim by the forger. But such a defense was not pleaded and hence the evidence was properly excluded.

The judgment must, therefore, be affirmed, with costs.

Present: Giegerich and O’Gorman, JJ.

Judgment affirmed, with costs.

*

 Opinion rendered by the associate justices, after the death of Presiding Justice Beekman.— [Rep..