(dissenting):
The plaintiff, cannot hold the judgment which he has recovered, unless the bank certified the check for Mm. In this the court is- in entire accord. The real question, therefore, is whether the bank did in fact certify the check for the plaintiff; and I am unable to agree with the other members of the court that it did. The check was drawn by one Johns, payable to the order of Mi’s. Muir, and when it was presented to the bank for certification it had not been indorsed by, nor was anything said to indicate to the certifying officer that it had been delivered to her. The messenger who took the check to the bank for certification did not know the teller who certified the check, nor did the teller know him. Under such circumstances, I think we should hold that the certification was for the maker of the check, and not for the plaintiff, who happened to be the holder. Before a check can be said to have been certified for the holder, there must be something on the check itself to indicate that it has beén delivered by the maker to the payee, or else satisfactory information to this effect must be given to the bank. A certification of a check at the request of a maker adds to his obligation that of. the bank, whereas a certification at the request of the holder, after' the check has been delivered, releases the maker and all prior indorsers (First National Bank of Jersey City v. Leach, 52 N. Y. 350; 5 Am. & Eng. Ency. of Law [2d ed.], 1055, 1056), and this is upon the ground that the holder could take the money called for by the check, instead of the certification, if he so desired. While this distinction is of no great importance in the case presented, it is of the utmost consequence in commercial transactions, many of which are now carried on by means of certified checks.
In the present case, if the certification were for the maker of *341the check, then had. the bank failed, the plaintiff could have called upon him to make the same good; but if it were for the holder, the plaintiff alone would have sustained the loss. If I am correct in concluding that upon the facts the certification was for the maker, then it necessarily follows that the judgment must be reversed, because when the check was certified there was attached to it an implied condition that it would not be paid until the same was properly indorsed by the payee (Goshen Nat. Bank v. Bingham, 118 N. Y. 349; Lynch v. First Nat. Bank of Jersey City, 107 id. 179.) Xor does this view, as it seems to me, conflict with Freund v. Importers & Traders' Nat. Bank (76 N. Y. 352). In that case, Freund and others were depositors in the defendant bank. They drew their check to the order of M. Oppenheimer & Sons, who, without indorsement, delivered it to N. Blun & Sons. N. Blun then indorsed upon the check the following: “M. Oppenheimer & Sons by N. Blun: N. Blun & Sons.” It thus appeared upon the check itself that X. Blun was the holder; that the check was no longer in the possession of the maker, and that the payees, M. Oppenheimer & Sons, had delivered the possession of it without indorsement to, X. Blun. The bank, therefore, if it saw fit, could certify the check for him, notwithstanding the fact that it had not been indorsed by the payees — and this is all that case holds. It certainly falls far short of holding that where one has obtained possession of a check, negotiable only by indorsement, sends it to the bank for certification by a messenger who does not know and who is unknown to the certifying teller, and the bank, nothing being said, certifies it, that that amounts to an agreement with the holder that the. check will be paid when presented, irrespective of the indorsement.
There are several other errors alleged by the appellant, but the view which I entertain renders it unnecessary to here consider them.
I think the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Judgment and order affirmed, with costs.