Defendant moved for an order adjudging that there is a misjoinder of parties plaintiff to this action, because the cause of action set forth in the complaint cannot accrue to both plaintiffs, one the maker and the other the payee of the check in suit, and for a further direction that an amended complaint may be served as required by the decision of the court.
The facts out of which the controversy arose indicate that the plaintiff Olsen, desiring to pay a debt owed to the plaintiff Irwin, procured a check of his on the defendant Bankers Trust Company to be certified by that bank and delivered it to a messenger to be carried to the plaintiff Irwin. The check was never delivered to Irwin, but apparently was forged and the proceeds paid by the Bankers Trust Company to some unauthorized payee. Thereafter on the return of the voucher to Olsen, and his discovery of the forgery, he made a redelivery of the check to Irwin, who *670presented it at the bank for payment as the real payee, but his demand thereunder was refused. Thereafter Olsen, the original maker of the check, received it back from Irwin and presented it at the bank and demanded that the certification thereof be withdrawn, and that the funds set apart under the certification be restored to his account. This demand was also refused. Thereupon both parties joined in this action on the same check and allege the facts just outlined.
The authority for the procedure of the plaintiffs is sought to. be found in section 209 of the Civil Practice Act which gives the instances in which persons may be joined in one action as plaintiffs, and provides, in effect, that such persons in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, where if such persons brought separate actions, any common question of law or fact would arise, may have a joinder of the cause in one complaint. The court, however, is permitted upon the application of any party, where it appears that the joinder may embarrass or delay the trial of the action, to make an order for separate trials, or such other orders as may be expedient. The judgment may be pronounced for one or more of the plaintiffs, as he or they may be found entitled to relief. This enactment does not seem to me to be authority, under the facts of this transaction or series of transactions as they are given in the complaint, to join these parties as plaintiffs. The claims of these plaintiffs are not co-ordinate, alternative or complementary. They are not joint nor several nor common. They are mutually destructive. If one plaintiff proves his right to recover, the other’s claim must perforce be entirely extinguished. The payee of an accepted bill, which corresponds in banking law to a certified check, where he has not procured the drawee to accept, still has his claim against both the drawer and acceptor of the bill, that is, the maker, and the bank certifying in the case of a check. Where the payee procures certification the acceptor becomes the debtor; the fund is assigned to the payee and the maker is wholly discharged from his obligation of the debt. The payee must thenceforward look solely to the acceptor or certifying bank. If the payee here have title to the check, the deposit in the bank remains wholly to the credit of the check and is forever withdrawn from the control of the maker. If the check has been reassigned to the maker and he is now the lawful holder and owner thereof, his right to have the amount of funds, which by reason of the certification had been held to the credit of the check, recredited to him, or paid by the bank to him, is a right in him alone. There *671is no common question of lav/ or of fact whose resolution in this action will determine the lights of each party to several portions of the fund involved, nor does the complaint show an instance where it is impossible to determine which plaintiff has the right or demand against the bank, so that relief in the alternative might be necessary to be determined. The facts seem to show, in so far as they are now alleged in the complaint, that the right of action is now in the maker or drawer, and no obligation remains to the payee upon the bank’s part. There is a true misjoinder and the order should have so declared.
The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with direction to serve an amended complaint on payment of said costs.
Clarke, P. J. and Dowling, J., concur; Smith and Finch, JJ., dissent.