Gutfreund v. East River National Bank (251 N.Y. 58, 1929)

Pound, J.

The case comes before us on an action to recover damages for the payment of nine fotged and altered checks, out of thirty-nine of like purport originally sued on. These nine are the later checks of a series covering a period of about one year and three months. The earliest is dated September 11, 1923; the latest January 22, 1924. Plaintiffs have had judgment thereon with interest for $2,183.48.

The facts out of which the litigation arises are as follows: Plaintiffs conducted a wholesale and retail meat market as partners under the firm name and style of Gutfreund’s Olympia Market. They bought provisions from various well-known wholesale dealers, including Swift & Co., E. C. Swift & Co., Cudahy Packing Co., and Morris & Co. They had a business checking account with the Commercial Trust Co., now merged with the defendant East River National Bank. They had a bookkeeper, John Hunold, whose duty it was to receive the bills for meat from the dealers, make out checks for their payment drawn on the Commercial Trust Co., enter the names of the dealers and the amounts of the checks on the check stubs, attach each bill to the check in payment therefor and present them to Sigmund Gutfreund, one of the members of the firm, for signature. Hunold would present from eight to twelve checks with the accompanying bills for signature at one time. Gutfreund would sign the checks and Hunold would mail them to the proper parties. Hunold was dishonest. In a bunch of checks payable to dealers he would present one check drawn to the order of “ Swift ” instead of “ Swift