I dissent from the reversal of this judgment, on the ground that the defendant was never in a position to chargeback these checks against the plaintiff’s account, as it had not the checks in its possession and could not deliver them to or return them to the plaintiff. As stated in the prevailing opinion, the defendant undoubtedly could have charged back the checks to the plaintiff’s account if the checks had been forged so that the plaintiff never had title to the checks. But as a condition for justifying such a charge, the defendant is bound to return the forged checks to the plaintiff. Until it was in possession of the checks, it could not recover from the plaintiff the amount that it had paid him on account thereof; and the same rule should apply to the right of the bank to charge back to its customer the amount of a forged check which the customer had deposited and which had been credited to the customer’s account. The defendant was not, therefore, bound to pay to the Merchants Bank the amount of the forged check -until the Merchants *754Bank had returned the check to the defendant (See Kearny v. Metropolitan Trust Co., 110 App. Div. 236, 240; Van Wert Nat. Bank v. First Nat. Bank, 6 Ohio C. C. 130; Redington v. Woods, 45 Cal. 406, 424, and cases cited; Continental Nat. Bank v. Metropolitan Nat. Bank, 107 Ill. App. 455, and cases cited); and the defendant was not entitled to charge back the amount of the checks to plaintiff for the same reason.
I, therefore, think the judgment should be affirmed.
Determination and judgment reversed and new trial ordered, costs to appellant to abide event.