The right of the plaintiff as drawer of the checks in question upon the refusal to pay, if such refusal was not justifiable, to bring an action against its depository for the amount of the check seems *390to be supported by the case of Viets v. The Union National Bank of Troy (101 N. Y., 563) where it is held that while a check drawn by a depositor against a bank account does not operate as an assignment of so much of the account, it authorizes the payee or one to whom he has indorsed and delivered it to make a demand, and the refusal of the bank to pay on presentation, gives the drawer a right of action in case he has funds in bank to meet the check and the refusal was without his authority. It is admitted in the case at bar that at the time of the demand for the payment of these checks the defendant had sufficient funds of the plaintiff’s to pay the same, and that the refusal to pay was not by the authority of the plaintiff. The ground upon which the defendant seeks to support the ruling of the learned court below in dismissing the complaint seems to be founded upon a misapprehension of the rules of law in reference to admissions.
The rule stated by the counsel is undoubtedly well settled by authority and has been frequently applied in reference to the construction of admissions not only in conversations but also in pleadings, and it is to the effect that where one party proves an admission of the other against him the latter has a right to insist that the whole of the conversation be taken together and he may prove all that was said at the time, as well what makes in his favor as what is against him, and that the whole admission is presumably true until some part of it is impeached by evidence. This rule is established by the case of Rouse v. Whited (25 N. Y., 170) and cases there cited ; but it has no application to the case at bar. The plaintiff attempted to prove no admission of the defendant. It proved an act, namely, the refusal to pay; and, although under the authority of Bennett & Hall v. Birch (1 Denio, 141), the defendant had a right to prove by the evidence establishing the demand and refusal, the reasons given for the refusal; there is no principle of law which justifies the assumption without evidence that the reason given is true. If such a rule were to prevail, it would be a dangerous act for a holder of commercial paper to present it for payment, because if in refusing such payment the reason assigned was that the paper had already been paid, the holder, although in possession of the paper, would be required to prove that such was not the fact, thus reversing the whole order of proof. If the *391plaintiff had sought to prove a demand and refusal by a conversation with one of the officers of the bank, had after the refusal, in which such officer admitted that such demand had been made and such refusal had taken place, and in connection therewith had stated that they refused upon the ground that- they had already paid the drafts, then the rule in respect to admissions- would apply. But in the case at bar the act of refusal itself was proved, and by no assertion -which the party upon whom the demand has been made may make, can he change the burden of proof as to payment.
It appears that as to two of the drafts, although bearing a number of indorsements, they were never indorsed by the payee until they were indorsed to George Wadsworth for collection, who presented the same for payment, the previous indorsements of W. C. Wads-worth & Go. being proved not to be genuine. It is clear, therefore that notwithstanding all the other indorsements- upon the drafts- the -title was in George Wadsworth for the.purpose of collection, and he had a right to demand the same of the bank, and that the payment to any of the other indorsees, even if proved, would be no defense to the action, because no title in the drafts existed in any of them, so far as appears by the evidence. As to the other drafts, which bore the genuine indorsement of W. O. Wadsworth & Co. to other persons, without some proof, the presumption would be - that W. O. Wadsworth & Go. had parted with their title to those " drafts prior to the time of affixing the subsequent indorsement to George Wadsworth for collection, and no recovery could be had ’•without some explanation in respect to the other indorsements-.
"It.-is.-claimed, however, that as the title to a check on a bank,, ■payable, to:a. -payee -named or order, may be transferred by mere -delivery,v-withont the: indorsement of the payee, the proof that the indorsements upon two-of" the checks of W. C. Wadsworth & Co.,, the payee,-.were-ndt-genuine: does not affect the position of the defendant, because 'the Fourth National Bank, when it presented ¡the checks to' the - déferidaht ""for payment, was presumably the holder of the checks,1 arid 'entitled to their payment. This proposition assumes that there is proof' that these checks were in possession of the Fourth National Barik,-and that it presented the checks to the defendant for payment and that the defendant paid the same.’ But, as has been seen, no such evidence exists in the case, it not *392having been proved, and the statement accompanying the refusal to pay the checks not being evidence of the truth of the facts stated in the refusal. If a bank pays a check drawn to order without the indorsement of the payee, it is bound to prove that the payee has parted with title before it can defend a refusal to pay upon demand by the payee having possession of the paper. There is no presumption that the holder of commercial paper payable to order, unindorsed, has any title to the same, whatever the presumption may be, where genuine indorsements are established.
It is claimed upon the part of the respondent that the plaintiff before it could recover of the defendant was clearly bound to tender back to the defendant the cheeks with their indorsements. It is sufficient to say, in answer to this proposition, that the checks were tendered at the time of the demand and refusal, and that no such point was made upon the trial or upon the pleadings, and if any motion had been based upon those grounds the plaintiffs had the checks in court and would undoubtedly have offered to surrender them to the defendants.
It would appear, therefore, that certainty as to two of the checks in question it was error to dismiss the complaint, and for such error the judgment must be reversed and a new trial ordered, with costs to appellant, to abide event.
Daniels, J., concurred.