I concur in the opinion of Mr. Justice Scott in so far as he holds that the defendant is liable for $2,765, the amount received by it in payment of loans made to Poggenburg, but I dissent from his conclusion in so far as he holds that the defendant is not liable for any further sum. I think the trial court was right in holding the defendant liable for the aggregate amount of all the checks, and for that reason the judgment should be affirmed. Poggenburg for a long time prior to the time he was appointed executor of the Schneider estate, had had a deposit account with the defendant. He was appointed executor on the 9th of March, 1908, and shortly thereafter opened an account as such in the Bowery Bank. On April 24, 1908, ten days after opening the account, he drew the first check thereon, which was for $500, made payable to the order of the defendant, which indorsed and placed the same to his personal account. The form of the check was notice to the defendant bank that Poggenburg was depositing in his personal account funds of the Schneider estate; that he was using money intrusted to him as an executor for his personal advantage (Ward v. City Trust Co., 192 N. Y. 61; Hathaway v. County of Delaware, 185 id. 368; Niagara Woolen Co. v. Pacific Bank, 141 App. Div. 265); and had the bank then made an investigation, the real situation would have *681been disclosed and the loss sustained by the estate prevented. The bank, being in possession of certain information, was chargeable with a knowledge of all facts which an inquiry suggested by such information would have disclosed. (Rochester & C. T. R. Co. v. Paviour, 164 N. Y. 281.)
All of the checks in question save one were in the same form, viz., drawn directly to the order of the defendant, indorsed by it and then placed to the credit of the personal account of Poggenburg. That the defendant knew, or ought to have known, that Poggenburg had no right to .use the fmids of the Schneider estate in the manner in which he was using them is accentuated by the fact that almost from the first he commenced using such funds, or some part of them, to discharge a personal indebtedness to the defendant itself.
Stress seems to be laid in the opinion of Hr. Justice Scott on the fact that while the bank was bound to take notice from the form of the checks that the defendant was using trust funds to pay his personal obligation to the bank, it was not bound to take notice that he was using the funds when paying a personal obligation to other parties. I am unable to see the difference between the two cases. There is no difference in principle, as it seems to me, whether the bank knew Poggenburg was applying trust property to pay his own indebtedness to it or to others, because the liability must be predicated in either case upon the fact that the bank knew, or had it made an inquiry, which it ought to have made, would have known that the Schneider estate was being wrongfully deprived of its property. As I read the opinion in Havana Central R. R. Co. v. Knickerbocker Trust Co. (198 N. Y. 422), a different rule has not been laid down. I cannot believe the court in that case intended to hold that where a bank knows, or from information which it has could easily ascertain, a depositor is mingling trust funds with his own, by having them credited to his personal account and thereafter using them to discharge personal obligations other than to the bank itself, no liability attaches.
I think the judgment is right and should be affirmed, with costs.
Ingraham, P. J., Laughlin and Dowling, JJ., concurred; Scott, J., dissented.