Greenberg v. President & Directors of Manhattan Co.

In an action brought to recover the amount of five cheeks alleged to have been paid by respondent bank upon forged indorsements, judgment dismissing complaint at the close of plaintiffs’ case reversed on the law and a new trial granted, with costs to appellants to abide the event. The plaintiffs made out a prima facie case. There was sufficient evidence that appellants had received nothing of value in exchange for their cheeks and were consequently damaged. The trial court erred in striking out plaintiffs’ Exhibits 15-18, inclusive, which were competent evidence in tracing the source of the goods delivered under the invoices' from the alleged Leo Leiehner. There was sufficient evidence also of the nonexistence of the payee of the cheeks. Appellants were not required to prove that *870no such person as Leo Leichner existed anywhere. It was enough for them to submit evidence of the non-existence of a person bearing that name and answering the description, as to occupation and place of business, which was furnished the drawers of the cheeks. If upon another trial the non-existence of the payee is established as a matter of fact or of mixed law and fact, it will follow that the indorsements were forgeries. We do not pass on the question of respondent’s liability if it should appear that a person actually named Leo Leichner, but not the Leo Leichner intended by plaintiffs when the checks were drawn, indorsed the cheeks. There is no evidence of such facts in this record. Lazansky, P. J., Hagarty, Davis, Johnston and Close, JJ., concur.