I think the plaintiff is entitled to recover upon the plain principle that by mistake it paid money to defendants’ use.
Although the assessments upon the real property devised to the defendants were levied in the lifetime of the defendants’ testator, they were for street improvements and hence defendants could not demand that their testator’s estate pay them. (Matter of Hun, 144 N. Y. 472.) The assessments were a lien on the real property devised, which the defendants alone were bound to pay or suffer the loss of their property.
Some person not disclosed forged the name of one of plaintiff’s depositors to a check payable to the city, for the purpose of paying these assessments. The plaintiff paid the check under the mistaken belief that the purported signature of its depositor was genuine, and the assessments against defendants’ lands were thus discharged.
If the defendants themselves had forged the check there would have been no doubt of plaintiff’s right to recover. Money paid to the forger on a forged instrument can always be recovered back by the person paying it'. (Frank v. Lanier, 91 N. Y. 112 ; 2 Daniel Neg. Inst. § 1369.) One can adopt the unauthorized act of an agent in signing his name, and he can also adopt a forgery of his signature. (Howard v. Duncan, 3 Lans. 174; 2 Daniel Neg. Inst. [4th ed.] § 1352a.)
The plaintiff paid the money either by mistake, excusable or inexcusable, as the fact may be, or because it was induced to do so by fraud practiced by means of a forged check. The defendants cannot hold the benefit of the money paid by mistake if it was excusable, nor can they appropriate the fruits of the fraud without becoming liable. It seems to me that Hathaway v. County of Delaware (185 N. Y. 368) is conclusive authority upon defendants’ liability. In that case a former county treasurer was indebted to *807the county and by a forged note lie induced the plaintiff to pay his indebtedness, and it was held that the county must restore the money. In the present caso, by means of a forged check, a lien upon defendants’ property was paid and satisfied.
Section 112 of the Negotiable Instruments Law, upon which the referee based his decision, has nothing to do with the question. Of course the plaintiff could not recover the money back from an innocent holder of the check. It could recover it, however, from the forger, or one who adopts the forger’s acts or accepts the benefit of the forgery.
The form of the action is misconceived. The plaintiff could not be subrogated to the rights of the city. The complaint, however, states all the facts, and in addition to subrogation asks that it be adjudged that the defendants pay as for money had and received to their benefit. The action was decided on a wholly erroneous theory, and without passing upon the question as to whether or not the plaintiff was so negligent in making the payment that it cannot recover.
In my view the judgment should be reversed and a new trial granted.
Laughlin, J., concurred.
Judgment affirmed, with costs.