From the conceded facts it appears that the plaintiff signed a check, leaving the amount and the name of the payee blank. The instrument was stolen from his place of business by two persons, who filled in the amount, inserted the name of a fictitious payee, procured the same to be certified by the bank on which it was drawn and transferred the check to the defendant, who parted with the full apparent face value, partly in merchandise and partly in cash. The defense interposed was that the plaintiff was negligent in leaving the incomplete instrument where it could be stolen, and a fraud thereby perpetrated upon the defendant.
Section 34 of the Negotiable Instruments Law (Consol. Laws, chap. 38; Laws of 1909, chap. 43) provides: Where an incomplete instrument has not been delivered it will not, if completed and negotiated, without authority, be a valid contract in the hands of any holder, as against any person whose signature was placed thereon before delivery.” Section 35 of the same statute provides: “ Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto. As between immediate parties, and as regards a remote party other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting or indorsing, as the case may be; and in such case the delivery may be shown to *272have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument. JBut where the instrument is in the ha/nds of a holder in due course, a vahd delivery thereof by all parties prior to hi/m so as to malte them liable to him is conclusively presumed. And where the instrument is no longer in the possession of a party whose signature appears thereon,, a valid and intentional delivery by him is presumed until the contrary is proved.”
“ Delivery,” as defined by section 2 of the Negotiable Instruments Law, “ means transfer of possession, actual or constructive, from one person to another.” By section 35 the delivery, to be effectual, must, as regards a remote party other than a holder in due course, be made either by or under the authority of the person making, drawing, accepting or indorsing, the instrument; and when the instrument is in the hands of a holder in due course, a valid delivery is conclusively presumed. The check in question was not delivered “ by or under the authority of ” the maker. But as to a holder in due course, that, it would seem, is not requisite. In the hands of such a party a valid delivery is conclusively presumed. The defendant was a holder in due course. (Neg. Inst. Law, § 91.) It follows that section 34 is not applicable, for that section presupposes that there has been no delivery. I, therefore, vote to affirm the judgment.
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Cabe, J., concurred.
Judgment of the .Municipal Court reversed and new trial ordered, costs to abide the event.