dissenting. — I dissent. The bank and Peyser had the right to enter into an agreement that the former should pay the money deposited by the latter to the order of “ N. Honig, by S. A. Peyser,” and this agreement was binding, unless the rights of innocent parties intervened. The instrument never was delivered to Honig. The fact that it is negotiable in form is immaterial. If plaintiff’s right to recover depends upon the agency of Peyser, it is sufficient to say that the plaintiff must ratify or repudiate all of his acts. He cannot ratify the deposit and repudiate the indorsement. There is nothing to show that plaintiff owned the money de*475posited by Peyser. At most, the plaintiff ought not to recover more than three hundred dollars.
Rehearing denied.