I dissent from the conclusion of the prevailing opinion that the judgment so far as appealed from by the Hudson Trust Company should be affirmed. The facts which are stated, with relation to the opening of the account, to have been of such suspicious appear*387anee as to charge the trust company with notice that Eckerson was diverting the money of Denham to his own use are: (1) That the check was signed in the name of William R. Denham by John C. R. Eckerson, attorney in fact; (2) that it was made payable to John C. R. Eckerson, trustee; (3) that it was deposited to Eckerson’s credit in a special account.
1. Eckerson stated to the bank officials that the money was his money. This was in reply to their inquiry as to the check being made payable to “Eckerson, trustee,” and had no relation to the manner in which the check was signed. In the prevailing opinion it is stated, “ Besides, the check was signed in the name of Denham by Eckerson as 1 attorney in fact,’ thus indicating on its face that the money was Denham’s and not Eckerson’s. * * * Had inquiry been made at the United States Mortgage and Trust Company, the power of attorney deposited with it could have been scrutinized and it could have been ascertained that the account against which Eckerson was drawing in the name of Denham as attorney in fact Was for the benefit of Denham and belonged to Denham and not to Eckerson.” There was no inquiry necessary to show that the account in the mortgage and trust company was Denham’s and not Eckerson’s, and that the account was for the benefit of Denham and not Eckerson. The face of the check showed that, and Eckerson never made any claim that the account in Denham’s name was his, Eckerson’s. But what he did claim was that the avails of that check belonged to him personally. If investigation had been made at the mortgage and trust company, it would have revealed a broad and comprehensive power of attorney giving Eckerson the right “ to draw, accept, make, execute, endorse, transfer, sell and deliver bills of exchange, promissory notes, drafts, checks and all other instruments for the payment of money; to keep one or more banking accounts, and to draw against and make deposit on such account or accounts; to borrow money * * * to pay * * * any claims or demands against me; to make any contracts, agreements or stipulations and to do any other acts or things incident to or suitable or deemed by him advisable in connection with any of the purposes hereinbefore referred to; giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever deemed by him requisite and necessary to be done in and about the premises as fully to all intents and purposes as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or his substitute may lawfully do or cause to be done by virtue hereof.” An inspection of this power of attorney certainly would not show any lack of *388authority in Eckerson to draw this check upon the account. Den-ham could himself have drawn it, and the act of Eckerson was within the express power given by the power of attorney, and I know of no obligation resting upon one who accepts an instrument, executed within the express power conferred, to go further and inquire whether the attorney has abused the power given, for his own benefit or to commit a fraud on his principal. It is said that if inquiry had been made of Denham, “ the truth would have been revealed that the 1 special ’ account was being opened not by moneys which belonged to Eckerson individually but to Denham.” Here again I know of no obligation resting on one who accepts an instrument executed by an attorney in fact within the expressed or apparent power conferred, to inquire of the principal whether the power had been abused or was being fraudulently used. The defendant trust company did not accept this check in payment of Eckerson’s personal debt or obligation owing to the defendant. It merely collected the amount thereof and placed the same to the credit of the payee. The certification and payment of the check by the institution on which it was drawn constituted the most positive assertion by that institution that Eckerson was authorized to draw just such a check upon it. (Havana Central R. R. Co. v. Knickerbocker Trust Co., 198 N. Y. 422, 430.)
2. Nor was there anything suspicious, or to charge the defendant trust company with notice that the check was not his personal property, by the addition of the word “ trustee,” even if the account had been opened as the account of John C. R. Eckerson, Trustee, as Eckerson at first proposed, or to give even constructive notice that the account was really in trust and not individually. In Manhattan Savings Institution v. New York National Exchange Bank (170 N. Y. 58, 67) the court said: “ Coupling the word ‘ trustee ’ with his name as a depositor was not an unusual, or peculiar, circumstance; nor, necessarily, imported that he was acting as trustee for others. It simply distinguished, or described, the account which he opened in a particular way, satisfactory to himself, and did not call for any investigation on the part of the bank into his authority as trustee.” That the mere addition of the word “ trustee ” to the name of the payee was mere descriptio persones, and not intended to intimate that it applied to him only in the technical character which might appear from the word used.
3. There is no significance whatever to be attached to this money being deposited in a “ special account.” Eckerson had a personal account with the defendant trust company, and all that this method of opening a special account would tend to show was, that for some purpose of his own he desired to differentiate this account from his *389general account, and for some purpose of his own to segregate and keep the deposits in this account separate and not commingle them in his general account. Far from there being anything suspicious it would tend to allay suspicion that his propose was to convert to his own use moneys which he held for a special purpose or upon a trust. And yet in this circumstance alone, Mr. Justice Greenbaum discovers sufficient to differentiate the case under consideration from Bischoff v. Yorkville Bank (218 N. Y. 106).
Unless the facts of the opening of the account were sufficient to charge the defendant with notice that the depositor was maintaining this account with a fraudulent purpose, certainly the deposit of the three checks payable to Eckerson’s own order and the one payable to his order as “ special,” totaling $18,817.36, in this special account would not impose any obligation on the defendant trust company to investigate as to the origin of these checks, or in return for what they were received.
There were deposited in this account four separate checks made payable to John C. R. Eckerson, Executor,” not as would be inferred but not intended to mean “ as executor ” as might be inferred from the language used in the prevailing opinion. In addition to the presumption that the defendant trust company would be entitled to presume that “ the fiduciary will apply the funds to their proper purposes under the trust ” (Bischoff v. Yorkville Bank, supra, 111), we have the actual dealings with the special account. The moneys deposited in this account were largely transferred to another account that Eckerson had with the defendant trust company as executor of the estate of Joseph H. Snyder. The first “ executor ” check that he received was for $7,252.13, which he deposited in the special account, and on the same day checked out to the Snyder estate a check for $7,500. On the same day that the check for' $1,694.25 was deposited a check against the special account in favor of the Snyder estate was deposited in that account for $1,695. On May eleventh and sixteenth the third executor’s check for $11,231.26, and the fourth for $2,290.92, were deposited, but on May fourth a check for $20,000 had transferred that sum to the credit of the Snyder estate. There was nothing whatsoever to indicate to the defendant that these funds belonged to the Denham estate, or any particular estate, and when they were transferred to the Snyder estate, of which he was sole executor, the defendant certainly could presume, if the funds did belong to any estate and not to Eckerson personally, that they belonged to and had been paid over to the proper estate.
Eckerson drew no check on this account to pay a personal obligation of himself to the defendant, nor did the defendant gain any *390benefit or advantage to itself from this special account, except that after Eckerson’s death with respect to a promissory note for $1,900 payable to the defendant trust company, that company applied to its payment $500.48, the balance of Eckerson’s personal account, and $1,400, the balance, was charged to the special account; because of which the majority of the court say: “ There is thus evidence that to the extent of $1,400 the Hudson Trust Company itself benefited by the ‘ special ’ account.” But it is receiving money with notice, express or implied, that it was held in trust for another, and applying that upon the obligation of the fiduciary, that renders the taker liable to account.
The facts in this case are stronger in support of the exoneration of the Hudson Trust Company than they were favorable to the Yorkville Bank in the Bischoff case. In my opinion the judgment and findings of fact upon which liability was imposed on the Hudson Trust Company to the extent that it has appealed should be reversed, and the recovery against it limited to the balance remaining in the special account. Otherwise I concur in the opinion of Mr. Justice Greenbaum.
Smith, J., concurs.
Judgment as to Hudson Trust Company modified as indicated in opinion and as so modified affirmed as to it, without costs; in other respects affirmed, with costs to respondent. Settle order on notice.