Citations
- 209 A.D. 686
Full opinion text
Dowling, J.:
This action was instituted by the plaintiff against the Guaranty Trust Company to recover for the conversion of $1,000 which plaintiff had on deposit with the said bank on or about December 7, 1920. The said sum of money had been sent in conformance with plaintiff’s instructions by the National Bank of Greece at Smyrna to be deposited with the defendant bank to plaintiff’s credit.
On December 15, 1920, defendant (as claimed by plaintiff without any authorization) issued a treasurer’s check, drawn to the order of “ S. Sarafian,” the plaintiff, and sent it by messenger to the Europe-America Commercial Company of 76 Broad street, New York, where it was left with one George Zafirides, a partner of Zafarías Zafirides, doing business under that name. George Zafirides took the check and indorsed thereon the payee’s name,
“ S. Sarafian ” and deposited it in the Battery Park National Bank to the account of Zafirides Brothers. Thereafter the check was presented for payment through the New York Clearing House and on December 16, 1920, was paid by the defendant.
The question most vigorously contested upon the trial was the authority of George Zafirides to indorse the treasurer’s check in question and to deposit it for the account of his firm. That question was decided by the learned trial justice adversely to defendant.
But even had that question been settled in favor of defendant, upon the record now before us it could not have succeeded in this action, for there is absolutely no proof that it was ever authorized or warranted in sending the treasurer’s check in question.
Plaintiff testified that he authorized the Banque Nationale de Grece at Smyrna to send the $1,000 to be deposited to his credit with defendant. He is not shown to have ever authorized the drawing of the treasurer’s check by defendant.
For the defendant, Zafarías Zafirides, one" of its witnesses, testified to the general nature of the business of his firm with plaintiff, but knew nothing of the transaction in question as he was abroad at the time.
George Zafirides, who received and indorsed the check, said defendant sent it over voluntarily by a messenger. He said plaintiff’s brother Casper Sarafian asked defendant for the money, but the latter’s authority to transact any business for plaintiff was not shown, nor did defendant offer any proof that it drew the check on Casper Sarafian’s authority or even at his request.
A Ralph Rustin, a clerk in defendant’s employ, was called as a witness for it. He identified a paper of which a copy had been sent with the treasurer’s check to plaintiff, care of Europe American Commercial Company, 76 Broad street, as testified to by George Zafirides. This was marked Exhibit E, and reads as follows:
“ Original Receipt,
“ Foreign Files
“ Received from
“ Guaranty Trust Company of New York,
“ 140 Broadway,
“ December 15th, 1920.