The complaint was properly dismissed. The Park Bank was guilty of no breach of duty; nor was it indebted to the plaintiff at the time the suit was commenced. The proceeds of the drafts were properly placed to the credit of the Weedsporb Bank, aiid its direction to deliver the cash so credited, with the notes, to C. W. Kellogg or order, was sufficient evidence of his authority to receive payment from the defendant. It was so treated by the Park Bank, in passing the amount to his credit, and permitting him to draw it out on the faith of. the order. That it was so intended by the Weedsport Bank, is *564evident from the letter of provisional revocation, which directs the defendant to hold the $5,000 to meet a later draft in favor of Blake, “ unless you have already paid the amount on our order to O. W. Kellogg.” Even if the order were construed as calling.for a technical delivery of the money, the defendant fully complied with its terms, by the successive payments in cash made to the order of Kellogg prior to the letter of revocation. But the instrument was in terms negotiable, and it was properly regarded by the court below as, in substance and effect, a draft for the payment to C. W. Kellogg, or order, of the sum of $5,000, deposited in the Park Bank to the credit of the drawer. It was • duly honored by passing the amount to the credit of the payee, with his assent, on the books of the bank.
The judgment should be affirmed.
Smith, J. also read an opinion for affirmance. All the judges concurred except Moegah, J., who dissented.
Judgment affirmed.