(dissenting):
I dissent for the reasons given by me for my dissent in Havana Central R. R. Co. v. Knickerbocker Trust. Co. (135 App. Div. 313, 320). While the reversal of that case in the Court of Appeals proceeded upon a different ground from any which was discussed in this court, yet that fact does not necessarily imply a disagreement with the views that I had expressed. As I then pointed out, in all the cases relied upon to sustain the rule which it is proposed to apply in this case there has been present the important fact, which is absent here, that the bank or individual to whom the diverted money was paid received it in payment of a debt, or in some other way reaped a benefit from the payment, thus becoming, with notice, an active participant in the diversion. Where that fact has been absent, as for instance in a case like the present, where the bank was a mere conduit or collecting agency, asserting no title to or right to retain, the money for its own advantage, a different rule has uniformly been adopted.. (Gray v. Johnston, L. R. 3 H. L. [1868] 1; Coleman v. Bucks and Oxon Union Bank, L. R. 2 Ch. Div. [1897] 243; Shields v. Bank of Ireland, 1 Irish Rep. [1901] 222; Ashton v. *272Prest., etc., Atlantic Bank, 3 Allen, 217; Batchelder v. Central Nat. Bank, 188 Mass. 25; Safe Deposit & Trust Co. v. Diamond Nat. Bank, 194 Penn. St. 334; Rhinehart v. New Madrid Banking Co., 99 Mo. App. 381; Martin v. Kansas Nat. Bank, 66 Kan. 655.) The distinction between the two classes of cases seems to me to be perfectly obvious and one which goes to the very root of the difference between the cases which under certain circumstances hold a bank liable, and under others hold it to be free from liability,. The judgment; should be reversed.
Clarke, J.-, concurred. ,
Judgment affirmed, with costs.'