Upon the'uncontroverted evidence in this case it is made to appear that the plaintiff’s agent, Garwood, vías authorized to settle with parties to whom he had sold lumber by taking their checks in pay. ment therefor. It seems that in January, 1901, he made such a settlement with this defendant, allowing him a discount of two per cent upon the’amount of his bill, taking his check in payment of the balance, amounting to thirty-eight dollars and eighty cents, which check he thereafter forwarded to-the plaintiff, who accepted the same without objection. As. between Garwood and the defendant the same course was pursued upon each of the subsequent purchases by the latter, and in every instance where a settlement was had Garwood receipted the bill immediately upon the defendant’s handing him his check. That the defendant had money in the bank to meet these several checks is beyond all question, for it appears that they were paid upon presentation. Upon one of these checks, drawn. upon the Hew York County Hational Bank for $1,000, and bearing date the .13th day of April, 1901, the avails of which were obtained and appropriated by Garwood, the plaintiff subsequently lodged a ■complaint against Garwood in the Magistrate’s Court of the city of Hew York, wherein he charged him with forgery and larceny of the check, and in his deposition swore that Garwood received the same inpayment of lumber purchased by the defendant of Gar-wood, as the agent of Morris, the complainant. These facts, it seems to me, bring the case clearly within the principle laid down ■in Sage v. Burton (84 Hun, 267) and Allen v. Tarrant & Co. (7 App. Div. 172); and although the ease was submitted to the jury *517upon a somewhat different theory, I think their conclusion was correct and should be sustained.