dissenting.
As to tlie stock, the bank was a mere agent for transmission and sale, not responsible for anything but negligence, of which there is no evidence. This is conceded. In the ordinary course of business the bank received the clieck for tbe proceeds of the sale of stock, and of course its title to the check was only as agent for the real owner, the plaintiff. Treating the check as money, also in the ordinary course of its business, the bank passed tlie amount to the credit of the plaintiff in his account. It is said in the opinion of the court that it is clear that as to the check the relation of depositor did not exist. But with great respect for my brethren who so hold, I think it perfectly clear that that was tlie exact relation. The bank treated tbe check as money of its depositor, credited it in his deposit account, so notified liim, and he ratified and assented to its action by drawing against the sum. It is the basis of the alleged balance of deposit in his favor, for which tbis suit is brought. Without that check as part of his deposit account he has no such balance, his account is overdrawn. When the check came back unpaid the bank charged it up against its depositor to offset the formal credit which had been given him for it. This it had the right to do, just as if it had credited him with a deposit of @1,000 in bank notes or gold coin which later were found to be counterfeit.
It is also said that the bank still has tbe cheek, and lias not delivered it to plaintiff. He refused it. When he was notified that it had come back be said peremptorily he bad nothing to do with it. In this he was wrong. It was tlie basis of a credit to which he was not entitled, and on which he should not he permitted to recover.
Williams and Fell, JJ., join in this dissent.