I think when Bergman, the maker of the check, made it payable to the order of Litt, Litt became the holder of the check. He indorsed it in the presence of the drawer of the check to the order of the plaintiff, and the drawer then instructed him to deliver the check to the plaintiff. If the drawer of the check wished to pay the sum of money to the plaintiff, there is no explanation why he went through this process of drawing the check to Litt, instead of directly to the plaintiff. Litt, being the payee of the check and having it in his possession, had authority as to third parties to obliterate the direction to pay to the plaintiff and transfer it to a third party, who would then have a good title to the check. If instead of thus obliterating the name of the plaintiff, he signed the plaintiff’s name, and then as owner of the check transferred it to the defendant, I do not see why the defendant would not acquire title to the check. Plaintiff never had possession of the check. It might be, as stated in the prevailing opinion, that if the drawer of the check had delivered it to a third party for delivery to the plaintiff, that would be a constructive delivery which would justify the plaintiff in maintaining the action, but it was delivered, not to a third party, but to the payee.
In Worth v. Case (43 N. Y. 362) it was stated that where the instrument is delivered, not to the person to whom it is payable, hut to a third party for the benefit of the plaintiff, it will be held that that constituted a valid and binding delivery as against the party who delivered it, and, as between the maker of the check and the plaintiff, the law would hold that the *523party receives the delivery of the instrument as plaintiff’s trustee and makes the acceptance of it the acceptance of the beneficiary.
In this case the plaintiff served a bill of particulars. It was there alleged that the check was indorsed, pay to the order of the plaintiff, by the payee; that after the check was so indorsed, the drawer of the check handed it to Litt, with authority and with instruction to deliver it to the plaintiff; that the said Litt did not deliver the check to the plaintiff, but converted the same to his own use; that Litt forged or caused to be forged the name of the plaintiff on the back of said check; that said check so forged was presented by said Litt to one Grossman and said Litt obtained from the said Grossman the sum of $450 in payment of said check, and that thereafter and on September 23, 1914, two days after the check was drawn, the said Grossman deposited said check with the defendant, and on that day defendant collected and received the proceeds of said check from the bank upon which it was drawn. There was no evidence to contradict these allegations in the bill of particulars and the defendant proved that it réceived the check from Grossman in good faith for deposit, collected the check, and paid the amount thereof to Grossman.
I think, therefore, on the face of the instrument, Litt being the payee, had authority to dispose of the check to a bona fide holder for value in good faith, and it is entirely inmaterial who signed the plaintiff’s name on the check, so long as it was actually negotiated by Litt, who received the proceeds, and that, therefore, the plaintiff could not recover the amount of the check from the defendant.
It follows that the judgment should be reversed.
Laughlin, J., concurred.
Determination affirmed, with costs.