(dissenting):
I concur in the- opinion of my brother Clarke that section 826 of the Negotiable Instruments Law provides a defense which, to be availed of, must be pleaded and proven, and that it is not a condition precedent to be pleaded as part of the cause of. action when a depositor sues his bank for the amount on deposit, which has been apparently depleted by the payment of forged or • raised checks. I also agree with my brother McLaughlin that the defendant has sufficiently pleaded this defense by setting forth all the facts necessary to sustain it, although it does not refer to the statute in terms. I think, however, that so much of the deposition of Mr. Lau-terbach as was excluded should have been admitted in evidence, and that if credited it would have been sufficient to show that defendant had been notified in due- time that the checks drawn by Spier were forged, so far as concerns the signature of Lauterbach, the treasurer. He swore distinctly that he told Mr. Barber that if any checks had. been paid bearing his signature they had been forged. The defendant knew that but two checks had been drawn; that they practically exhausted the deposit, and that they both purported to bear Lauterbach’s signature. When Lauterbach stated to Barber that if any checks purported to bear his signature they were forgeries, there could have been no question as to which checks the notification related. If the same thing had been said to the president or other officer ■ of the defendant in its banking-office, I suppose there would have been no question that the notification was sufficient to satisfy the statute. If it was insufficient in this case, it could only be because it was made to Barber who was a director of defendant and one of its counsel. I recognize the rule quoted by Mr. Justice Clarke from Meachem on Agency, that notice to a director concerning the business of the corpora- ■ tion as to which such director has then no special duty or authority to act, or' upon which he does not subsequently act with such knowledge in his mind, and which he does not communicate. to the board, is not to be imputed to the corporation. Substantially the same rule, as I understand it, applies to notice given to or knowledge acquired by an attorney relating to a matter which he has not then in. hand as such attorney. *751But I do not think that the rule applies to the present case. Mr. Barber was at once a director arid one of the regular attorneys for the defendant. The occasion of his interview' with Mr. Lauterbach was to .discuss the situation, which had been created by the defalcation and sudden death of Spier. It is true that other matters were discussed besides the withdrawal of plaintiff’s funds from defendant, hut that subject and the manner in which it had been .effected were also discussed, and it must have, been obvious to both Mr. Barber and Mr. Lauterbach that the question as to the liability-of defendant for having paid out thé money was one which would probably become a matter of dispute. The statute does not prescribe the manner or form in which notice must be given, and I think that any notice which fairly apprises the depository bank that a claim will be asserted that it has paid out money on a forged or raised check is sufficient. I am also of opinion that the excluded portion of Mr. Lauterbach’s deposition would have justified a court or jury in finding that such notice was given. If so, its exclusion was erroneous. I am, therefore, for reversal and a new trial.
Ingraham, T. J., concurred.
Judgment and order affirmed, with costs.