Opinion
January 10, 1908.
Julian C. Harrison, for the appellant.
Clarence P. Moser, for the respondent.
The plaintiff in this case is suing as receiver of the New York Investment and Improvement Company, to recover from the defendant a deposit, the amount in which he alleged the defendant is indebted to the corporation. The defendant claims that it paid out this deposit upon certain checks drawn by the corporation, the plaintiff claiming that one of the signatures to these checks was forged. The question at issue in this action is simply as to whether or not the checks upon which this deposit was paid out were or were not forged. It is alleged that Spier, the president of the corporation, received the money and appropriated it or the greater part of it to his own use. Subsequently Spier delivered to Alfred Lauterbach, secretary of the corporation, life insurance policies calling for the payment upon his death of $75,000, with a direction to Lauterbach that upon receipt of the sums due on the policies he should pay to the defendant, the Guardian Trust Company, for account of the New York Investment and Improvement Company, $68,067.09. Shortly after Spier died, Lauterbach collected from the insurance companies $75,000 and filed a bill in equity, making the plaintiff and the defendant parties, asking that the rights to this money of the various parties to the action should be determined. The court below has stayed the trial of this action until the determination of the interpleader action in relation to the insurance moneys. I do not think such an order was justified. The plaintiff as receiver is suing for an amount claimed to be owing from the defendant. The plaintiff has no connection with the proceeds of these policies of life insurance, and if he can establish the fact that the checks drawn on the defendant were forgeries, he will be entitled to recover the amount of the deposit remaining to the credit of the corporation, disaffirming the payment on account of the forged checks. The right of the plaintiff to recover cannot in any event depend upon the disposition that is made of the proceeds of the life insurance policies. If the checks are forged, he would be entitled to recover the amount on deposit, whether the defendant could collect the insurance money or not. If it should appear that the checks were not forged and that Spier appropriated the money of the corporation, then the corporation might have a claim against Spier and a right to enforce this trust, or whatever it may be said to be, as to the proceeds of the life insurance policies. But irrespective of the provision as to what shall be done with the insurance money, if the checks are forgeries the plaintiff is entitled to recover in this action.
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion for a stay denied, with ten dollars costs.
PATTERSON, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.