App. Div. 632] First Department, April, 1921. what his clerk did, or to have adopted the checks paid by the bank and charged to him, cannot be made in this action to depend upon a calculation whether the criminal had at the time the forgeries were committed, or subsequently, property sufficient to meet the demands of the bank. * ** As the right to seek and compel restoration and payment from the person committing the forgeries was in itself a valuable one, it is sufficient if it appears that the bank by reason of the negligence of the depositor was prevented from promptly and, it may be, effectively, exercising it." In United States v. National Exchange Bank (45 Fed. Rep. 167) the court said: "There is, I think, another reason why the plaintiff should not recover. The department waited over a month, from about March 11th, to April 17th, after having notice of the forgery, before returning the check to the bank, or giving any notice of its intention to hold the bank liable. This was, within all the cases, an unreasonable time to wait. The notice should have been given without unnecessary delay after discovery of the fraud, to enable the bank to pursue any remedy it might have against the forger or indorsers. It is no doubt true that full knowledge of the forgery may not have been in possession of the government until the coming in of the special agent's report. But it was apprised of the fraud before March 15th, and knew substantially all that was afterwards reported of it by the agent. It certainly knew enough of it to put it upon inquiry. It is urged in answer to his objection that the defendant also had notice of the fraud about the same time. But that was not enough. The government did not repay the money until July, and the bank could not assume, without the return of the check and demand of payment that the government intended to pay, or to hold the bank responsible. 2 Pars. Notes & B. 598; Redington v. Woods, 45 Cal. 406; 3 Amer. & Eng. Enc. Law, 224, and cases cited; Cooke v. U. S., 91 U. S. 396; U. S. v. Cent. Nat. Bank - Philadelphia, 6 Fed. Rep. 134; Gloucester Bank v. Salem Bank, 17 Mass. 33. Judgment for defendant." In Connors v. Old Forge D. & D. Bank (245 Penn. St. 97) a depositor delayed forty-three days after the discovery of the forgery in notifying the bank, and in McNeeley v. Bank of North America (221 id. 588) there was a delay of three First Department, April, 1921. [Vol. 196 months. In both of these cases the court held that there could be no recovery as matter of law. The rule has frequently been announced that it is the duty of the party who seeks to hold a bank liable for paying a forged check or draft to advise the bank promptly after the discovery of the forgery. The reason for the rule obviously is that unless the bank is thus promptly notified, it may be deprived of the opportunity to pursue the forger and recoup its loss. It follows that the bank is not obligated affirmatively to establish that it would have been benefited if it had been promptly apprised of the forgery. The undisputed facts before us in the instant case are that plaintiff had absolute knowledge on or about February 1, 1920, that the draft had been drawn on the defendant and that Bunt had forged the indorsement and that for three weeks or more prior to February first he knew that Bunt had forged the indorsement without knowing the name of the bank upon which the draft was drawn, and that despite such knowledge, plaintiff dallied with the forger during January and the whole of February, if not later, upon his promise to make good the loss, and that the defendant was kept in ignorance of the forgery until about the first day of April. Upon the state of facts here appearing it was not necessary for the court to submit to the jury the question of fact whether plaintiff was guilty of negligence since his negligence was firmly established as matter of law by an unexplained delay of sixty days in making a demand upon the bank after knowledge that the defendant had paid the draft upon a forged indorsement. The complaint should have been dismissed. The judgment and order are reversed, with costs, and the complaint dismissed, with costs. DOWLING, LAUGHLIN, SMITH and MERRELL, JJ., concur. Judgment and order reversed, with costs, and complaint dismissed, with costs. App. Div. 639] First Department, April, 1921. In the Matter of the Judicial Settlement of the Account of the FARMERS' LOAN AND TRUST COMPANY, Appellant, as Ancillary Executor, etc., of ELIZABETH CONNELL, Deceased. In the Matter of the Petition of ROGER FOSTER, Respondent. First Department, April 29, 1921. Executors and administrators - claim by attorney for services performed at request of temporary administratrix which resulted in no advantage to estate part of services performed after appointment of ancillary executor Surrogate's Court does not have jurisdiction to pass on claim attorney does not have lien. An attorney who was employed by a temporary administratrix to collect certain moneys has no claim against the estate for services, which resulted in no advantage to it, and which were performed after the issuance of ancillary letters and before said letters were revoked, nor for services rendered after the order revoking said letters was reversed on appeal. Furthermore, the Surrogate's Court has no jurisdiction of a proceeding instituted by an attorney to compel the ancillary executor to pay to the attorney out of the assets of the estate the value of services rendered by him for the temporary administratrix. The proceeding cannot be maintained upon the theory that the attorney has a lien upon the estate and that the surrogate has power to determine the amount thereof, where the attorney collected nothing in the actions commenced by him which were halted before they were brought to trial. APPEAL by the Farmers' Loan and Trust Company, as ancillary executor, from an order of the Surrogate's Court of the county of New York, entered in the office of the clerk of said court on the 29th day of September, 1920, directing it to pay to the petitioner, Roger Foster, out of the assets of said estate, the sum of $952.18, which together with his costs and disbursements constitutes the amount claimed to be due to him for legal services rendered at the request of one Catherine Kirk Overlander, who at one time was the temporary administratrix of the estate. Charles Angulo of counsel [Geller, Rolston & Horan, attorneys], for the appellant. Roger Foster, for the respondent. GREENBAUM, J.: First Department, April, 1921. [Vol. 196 Most of the facts connected with the present litigation are detailed in the opinion of Mr. Justice SMITH in Matter of McCaffrey (188 App. Div. 772). For the purpose of this appeal it is only necessary to give a chronological statement of the various proceedings in Canada and in this State involving appointments of the executor in Canada, and of the ancillary executor and of a temporary administratrix in this State. Elizabeth Connell died in 1910, leaving what in Canada is called a notarial will in which she designated Thomas Kirk of Montreal her executor. The will was filed in court, the effect of which under the laws of Canada was to entitle him to exercise the duties of executor. Subsequently the Farmers' Loan and Trust Company was appointed an ancillary executor. On March 11, 1911, Elizabeth Craig, one of the next of kin of the decedent, petitioned the surrogate of New York county asking for probate of the will upon the ground that the deceased was a resident of New York county and had personal property in the city of New York. On May 29, 1911, another of the next of kin, a Mrs. Barrows, also presented a petition to the surrogate asking that the ancillary letters issued to the trust company be set aside, claiming, among other things, that the decedent was a resident of New York county. The surrogate dismissed both proceedings, and upon appeal to this court the orders of dismissal were affirmed and upon appeal to the Court of Appeals the orders of this court were reversed. (See Matter of Connell, 92 Misc. Rep. 324; 175 App. Div. 986; 221 N. Y. 190.) The Court of Appeals did not reverse the conclusions as to decedent's non-residence here, which both the Surrogate's Court and this court had found. The reversal was solely based upon the circumstance that the first ancillary letters were granted not upon the probate of the will by a court but merely upon a formal filing of the will. The Court of Appeals held that such a filing was not a probate of the will within the meaning of our Code. Thereafter application for final probate of the will was made to the Superior Court of the Province of Quebec, whereupon a decree of probate was duly entered. App. Div. 639] First Department, April, 1921. On January 3, 1918, the Surrogate's Court of New York county issued temporary letters of administration to one Catherine Kirk Overlander, who thereafter and on January 7, 1918, duly qualified upon filing a bond in the penalty of $13,000. Loan and Trust Company On May 23, 1918, the Farmers' obtained second ancillary letters. ancillary letters were revoked by order of the Surrogate's Court, but on July 3, 1919, the order was reversed on appeal by this court (188 App. Div. 772). On July 2, 1918, Catherine Kirk Overlander, as temporary administratrix, appointed Roger Foster, the petitioner, to collect from the East River Savings Institution and the Bowery Savings Bank of New York moneys alleged to be on deposit in those banks belonging to the estate and aggregating about $8,900, which in fact had been withdrawn from those banks by the Canadian executor in 1910. Pursuant to his retainer, the petitioner brought actions against the two banks respectively in the name of the temporary administratrix. In connection with these actions, the attorney performed services commencing July 2, 1918, and continuing up to November 13, 1919. From the bill of particulars submitted upon the reference directed by the surrogate to pass upon petitioner's claim, it appears that five items of service in each of the cases were rendered before July 12, 1918, the date when the ancillary letters to the trust company were revoked by the surrogate, and that about twenty items in each case refer to services performed after July 3, 1919, the date when the order revoking the ancillary letters was reversed. In other words, while the permanent ancillary letters were in force, the petitioner performed services for the temporary administratrix involving in both actions forty-nine or fifty items out of a total of one hundred during a period when his client Mrs. Overlander's office of administratrix was functus officio. It has been held that where permanent letters are issued, formal revocation of temporary letters is unnecessary, inasmuch as the issue of permanent letters in itself effects the retirement of the temporary administrator and discontinuance of his administration. (Matter of Neil, 184 App. Div. 507.) |