It appears that from time to time prior to the 5 th day of January, 1911, the plaintiff “sent for collection ” to the German National Bank of Cincinnati, Ohio, checks or drafts drawn upon banks and individuals, which it is admitted by the pleadings had been received by the plaintiff and were owned by it, upon which said bank had collected on the day last mentioned the sum of $2,953.92, and, although it then had a deposit account with plaintiff with a balance to its credit in a much . larger amount, it drew its check therefor, under date of January 5, 1911, to the order of the plaintiff, on the First National Bank of the city of New York, with which it also had a deposit account. That check was received in New York on the morning of January 7, 1911, before banking hours, by the Deputy *716Superintendent of Banks, representing the State Superintendent of Banks, who had just taken .possession of the plaintiff. Under the supervision of the Deputy Superintendent of Banks the mail addressed to the plaintiff was opened and checks for more than $1,000 payable to it (plaintiff) were, by his direction, presented to the local banks on which they were drawn for certification. The check in question was presented to the defendant for certification, pursuant to this direction, at or shortly after ten o’clock, and it was duly certified. Prior to so certifying the check the defendant was aware of the fact that the Superintendent of Banks had closed and had taken possession of. the plaintiff for the purpose of liquidation. An examination of the records of the plaintiff on that morning would have disclosed the fact that plaintiff had a balance on deposit to the credit of the drawer of the check of $11,900.16; but the attention of the Deputy Superintendent of Banks does not appear to have been called thereto, and he made no examination of the records, and so far as appears did not know this fact. At . eleven-fifty o’clock A. it. that day the defendant received a telegram from the drawer of the check to stop payment thereon, and acting in behalf of the drawer of the check which indem- ' nified it defendant subsequently refused to perform the contract created by its certification of the check.
This action is brought on the contract of certification, and the defendant pleads, the facts to which reference has been, made and attempts to assert in behalf of the drawer of the check a right to an equitable setoff of its deposit account with the plaintiff in extinguishment of its. liability.
At the close of the evidence counsel for plaintiff moved for the direction of a verdict, and counsel for defendant moved for the dismissal of the complaint, and by consent the questions were taken- under consideration by the trial court upon the understanding that the jury might be discharged and the complaint dismissed or a verdict directed as if the jury were present; and, thereafter the learned trial justice filed a memorandum opinion directing judgment for plaintiff.
The German National Bank of Cincinnati is not a party to this action, and, therefore, no question with respect to its setoff rights; or in other words its right to have the Carnegie *717Trust Company’s liability to it applied in payment of the check, is presented for decision. The duty the defendant owed to the drawer of the check to pay the samé on presentation was fully discharged by certification of the check, the effect of which was to charge the check to the account of the drawer, as if it had been paid in cash, and to assign the deposit of the drawer with the defendant to the extent of the face of the check to the plaintiff, and to cancel all liability on the check as between the original parties, and to discharge the liability of the drawer of the check to the plaintiff to the extent of the amount for which the check was drawn, and to create a new and wholly independent contract between the defendant and the Carnegie Trust Company, by which the former became liable to pay the amount of the check to the latter on demand (Meuer v. Phenix Nat. Bank, 94 App. Div. 331; affd., 183 N. Y. 511; First Nat. Bank of Jersey City v. Leach, 52 id. 350; Cooke v. State Nat. Bank of Boston, Id. 96; People v. St. Nicholas Bank, 77 Hun, 159; Willets v. Phoenix Bank, 2 Duer [N. Y.], 121; Neg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43], §§ 323, 324; Morse Banks & Banking [4th ed.], §§ 414, 418; Meads v. Merchants’ Bank of Albany, 25 N. Y. 143; Farmers & Mechanics’ Bank of Kent Co. v. Butchers & Drovers’ Bank, 16 id. 125), and against which liability no equities then existing, or subsequently arising, in favor of the drawer against the payee would be available to the defendant as a defense. (Corn Exchange Bank v. Farmers’ Nat. Bank, 118 N. Y. 443; Castle v. Corn Exchange Bank, 148 id. 122; Hays v. Hathorn, 74 id. 486. See, also, Aubery v. Fiske, 36 N. Y. 47; McKay v. Draper, 27 id. 256.) The case is not, in my opinion, distinguishable on principle from Corn Exchange Bank v. Farmers’ Nat. Bank (supra), which I regard as decisive of it. The defendant, in certifying the check, neither acted in ignorance of nor was it misled concerning any material fact. The check was genuine and the drawer’s account was good. The Superintendent of Banks was under no obligation to examine the books of the plaintiff and to refrain from presenting the check for certification, or to inform the defendant that the plaintiff was indebted to the drawer in a greater amount than the face of the check. If the defendant was *718desirous of obtaining that information. before certifying the check, it might have inquired of the drawer of the check, or of the Superintendent of Banks, if necessary; but it cannot defend against the contract liability created by the certification on the theory that it was not aware that the drawer of the check had a deposit account with the plaintiff, for that .concerned the drawer of the check only and not the defendant. (See Dambmann v. Schulting, 75 N. Y. 55; Whiting v. City Bank 77 id. 363.)
I, therefore, vote for'affirmance:
Judgment reversed and complaint dismissed, with costs in all courts. Order to be settled on notice. .