I concur in the dissent of Coon, J., together with the following statement.
If my concept of ‘‘ bank draft ’’ is correct, unless there be restrictions or limitations upon the face thereof or by way of indorsement, the payee is entitled to payment absolute upon its presentation to the bank. This is the accepted practice in banking and money circles and if the majority opinion prevails, it will of necessity create many difficulties and complications. In fact, a “ bank draft ” will have little more significance than an ordinary check.
What may have caused the complications and difference of opinion in this particular case is the manner of pleading by plaintiff in setting forth in the complaint the various allegations with reference to what happened after the bank draft was delivered to the remitter and which to my way of thinking, was not a necessary or material part of the pleadings. The exhibits disclose that the defendant stopped payment on the bank draft as the result of a letter from the remitter in which he gave no reason or explanation for the same but assured the bank that in the event of liability, he would indemnify them.
When the bank at the request of its customer issued the said draft, it said to its customer and to the payee that upon proper presentation by the said payee, they would without condition or without qualification pay the face amount of the said draft. There was no obligation on the part of the bank to make any investigation. In fact, it has been held that the remitter is not entitled to the return of his money upon presentation of the draft without the signature of the payee.
In Kerr S. S. Co. v. Chartered Bank of India, Australia & China (292 N. Y. 253) the court said (pp. 260, 261): “ The rule is authoritatively established and universally recognized that the transfer of a draft in exchange for moneys paid for the delivery of the draft is an executed transaction characterized generally as a ‘ purchase and sale ’ of the draft. Such a transaction may not be rescinded by the purchaser when ‘ supervening war ’ delays indefinitely presentment and payment of the draft.” (Emphasis supplied.)
The cases cited in the majority opinion are clearly distinguishable. Armstrong v. American Exch. Bank (133 U. S. 433, 453) concerned an entirely different form of negotiable instrument known as a foreign bill of exchange and because of the nature of the particular instrument, various matters of notice and other conditions were attached thereto which would not apply to the “ bank draft ” here in question.
*177The Kingston Trust Company, to accommodate one of its customers, refused to honor its own draft and did so without justification in law or in equity and at its own risk.
In my opinion, the judgment and order in the lower court should be reversed.
Foster, P. J., and Reynolds, J., concur with Bergan, J.; Coon, J., dissents, in a memorandum in which Herlihy, J., concurs in a separate memorandum.
Judgment affirmed, with costs.