Opinion
December 19, 1913.
Henry H. Abbott [ Summer Ford with him on the brief] of counsel [ Breed, Abbott Morgan, attorneys], for the appellant.
Arleigh Pelham of counsel [ Shiland Hedges, attorneys], for the respondent.
The complaint alleges that the defendant is a foreign corporation organized under the laws of the State of New Jersey and engaged in carrying on the business of banking at the city of Newark; that on or about August 9, 1913, the Home Ice and Products Company, a corporation organized and existing under the laws of New Jersey, made its check in writing, bearing date on that day, and directed it to the defendant bank, and thereby required said bank to pay to Armour Company or order the sum of $1,000 and delivered the same to Armour Company; that on or about August 9, 1913, the defendant bank in writing accepted and certified such check, which check has since been duly presented to the defendant for payment, but no part thereof has been paid; that thereafter and on or about August 16, 1913, the claim against defendant on said check was duly assigned by Armour Company to the plaintiff. The second cause of action contains similar allegations regarding a check for $337.49. None of the allegations of the complaint are upon information and belief and it is duly verified. The affidavit of the plaintiff avers that the defendant is a foreign corporation organized and existing under the laws of the State of New Jersey and is justly and truly indebted to the plaintiff in the sum of $1,337.49, for damages, for breach of a contract other than a contract to marry, which amount is now due and owing to the plaintiff from the defendant over and above all counterclaims known to the plaintiff, upon the following facts, to wit: On or about August 9, 1913, Armour Company, a corporation organized and existing under the laws of the State of New Jersey, received for value from the Home Ice and Products Company two certain checks in the sums of $1,000 and $337.49, respectively, drawn by the said Home Ice and Products Company on the Roseville Trust Company of Newark, N.J., payable to the order of Armour Company, which checks were on August 9, 1913, duly certified for payment by the Roseville Trust Company of Newark, N.J., and assigned to the plaintiff above named for value, and that said James H. McMahon is now the owner and holder of the claim against the defendant on said checks. The affidavit then sets up as the sources of the deponent's knowledge and information relative to defendant being a foreign corporation, an attached telegram from the Commissioner of Banking and Insurance of New Jersey and the statements of the Bankers Register. It further avers that the sum of $1,337.49 is now justly due and owing to the plaintiff from the defendant by reason of the facts hereinbefore stated. Without putting in any answering affidavits the defendant moved to vacate the warrant of attachment which had been granted upon the ground of the insufficiency of the moving papers, and, said motion having been granted, plaintiff appeals.
Section 112 of the Negotiable Instruments Law (Consol. Laws, chap. 38; Laws of 1909, chap. 43) provides that "The acceptor by accepting the instrument engages that he will pay it according to the tenor of his acceptance; and admits: 1. The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the instrument; and 2. The existence of the payee and his then capacity to indorse."
Section 323 provides that "Where a check is certified by the bank on which it is drawn the certification is equivalent to an acceptance," and section 324: "Where the holder of a check procures it to be accepted or certified the drawer and all indorsers are discharged from liability thereon."
This action being upon certified checks, assigned to the plaintiff for value, who asserts that he is now the owner and holder of the claim against the defendant on said checks, he is entitled to state the facts appearing upon the face of the checks as of his personal knowledge. In Ladenburg v. Commercial Bank ( 5 App. Div. 219), in denying a motion to vacate a warrant of attachment, this court said: "Knowledge such as the law requires in affidavits of the present description is not necessarily personal observation of the affiant plaintiff. * * * It was, therefore, quite possible that the bills, with the documentary evidence of protest, were in the possession of the affiant plaintiff when he made his affidavit, and in view of his assertion of knowledge we must assume such to be the case in the absence of evidence to the contrary. If he had these bills and notarial certificates of protest in his possession his assertion of knowledge was not unfounded. That was knowledge within the sense of the statute. * * * With the documents in his possession he can properly depose upon knowledge and plead upon knowledge."
Proceeding upon negotiable instruments, especially on such a paper as a certified check, which in the business world has almost the currency of legal tender, a plaintiff who holds and owns the paper by assignment is in a vastly different position, for he is acting upon the paper itself, than one who is the assignee of a claim for the price of goods sold and delivered in a far off city, as was the case in Hoormann v. Climax Cycle Co. ( 9 App. Div. 579), relied upon by respondent. In the latter case, of course there is every presumption that plaintiff could not know of his own knowledge of the actual sale and delivery and price of the several items of goods, while in the former the paper sued on speaks for itself.
The plaintiff avers positively and in the words of the statute (Code Civ. Proc. § 636) that he is entitled to recover the sum stated over and above all counterclaims known to him. This is sufficient. ( Bremer v. Ring, 146 App. Div. 724.) "The plaintiff sufficiently shows that he is entitled to recover the amount over and above all counterclaims known to him and this answers the requirements of section 636 of the Code of Civil Procedure without showing that he was entitled to recover said sum over and above all counterclaims known to his assignor."
The order appealed from should be reversed, with ten dollars costs and disbursements to the appellant, and the motion to vacate the warrant of attachment denied, with ten dollars costs, and the attachment reinstated.
INGRAHAM, P.J., McLAUGHLIN, LAUGHLIN and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and attachment reinstated.