William B. Duncan et al., Appellants, v. Jacob Berlin et al., Respondents

William B. Duncan et al., Appellants, v. Jacob Berlin et al., Respondents. (Argued February 8, 1875; decided February 23, 1875.) Where the balance due a depositor in a bank is levied on by virtue of an attachment against the depositor, the bank is not authorized to'deduct an outstanding check given by the depositor to a third person which had not, prior to the levy of the attachment, been presented and accepted. And this is so, although a clerk in the bank has, prior to the levy, stated to the holder that the check was in order and would be paid. The promise did not bind the bank, as a parol acceptance is not valid. (1 R. S, 768, §6.) Where, upon an attachment issued against one member of a copartnership, to collect a firm debt, a bank balance of the firm is levied upon, by service of a certified copy of the attachment, and is voluntarily paid over to the sheriff, the bank is chargeable with notice of the contents of the attachment, and cannot recover back the amount paid as for moneys paid by mistake. Appeal from judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of defendants entered upon a verdict, and affirming an order denying, a motion for a new trial. This action was brought to recover back $1,000, alleged to have been paid by plaintiffs by mistake. The complaint alleged, in substance, that an attachment was issued, in favor of defendants, against the members of the firm of H. Blagge & Co., which was duly levied upon a balance of a deposit account in the hands of plaintiffs, as bankers. That in making up the account, by a mistake of one of plaintiffs’ clerks, in omitting to charge an item of §1,000, the balance appeared to be that amount too much. That the amount of the apparent balance was paid over by plaintiffs to the sheriff of the city and county of New York, upon execution issued upon a judgment, perfected in the action wherein said attachment had been issued, and had been, by the sheriff, paid over to.defendants. By the attachment, which was introduced in evidence, it appeared that it. was issued against Blagge alone, but it was to collect a firm debt. The levy was made on the 16th day of January, 1866, by service of a certified copy of the attachment upon plaintiffs. The mistake alleged in the complaint was proved, but it also appeared that plaintiffs charged in the account a check drawn by Blagge & Go., payable to one Leary, dated January 16th, 1866. This check was paid by plaintiffs on the seventeenth. Evidence was given, on the part of the plaintiffs, that, prior to the levy of the attachment, Leary called at plaintiffs’ banking-house and had a conversation with the clerk about the check, by whom he was advised that the check was in order and would be paid. Leary thereupon, without requiring a written acceptance, took the check awáy and dejiosited it in his own bank. The court directed a verdict for defendants, which was rendered accordingly. Wm. D. White for the appellants. A sheriff who has, under process of attachment or execution against one of a firm, taken manual possession of the partnership property, can sell only the interest of the party attached. (Smith v. Orser, 42 N. Y., 132; Abels v. Westervelt, 24 How. Pr., 284.) There was no effectual levy by the sheriff for want of a legal and necessary notice showing the property levied on. (Code, § 235; Clarke v. Goodridge, 41 N. Y., 213.) Balances or credits cannot be attached or levied on by execution or sold by the sheriff. (Barry v. Fisher, 39 How. Pr., 521, 527; Clark v. Warren, 7 Lans., 180; Code, § 237, sub. 2.) Plaintiffs having overpaid $1,000 by mistake it may be recovered back. (Bk. of Commerce v. Union Bk., 3 N. Y., 230; 2 Smith’s L. Cas., 237 ; L. Lib., 28 [N. S.], 269 ; Kingston Bk. v. Eltinge, 40 N. Y., 391; Duncan, v. Berlin, 11 Abb. Pr. [N. S.], 116; Cont. Bk. v. Nat. Bk. Com., 50 N. Y., 586.) Samuel Hand for the respondents. Plaintiffs were estopped from maintaining this action. (Cont. Nat. Bk. v. Nat. Bk. of Comm., 50 N. Y., 575, 583 ; Dezell v. Odell, 3 Hill, 216; Regney v. Smith, 39 Barb., 383; People v. Reeder, 25 N. Y., 302; Mfrs. Bk. v. Hazard, 30 id., 230; Price v. Neal, 2 Burr., 1354.) The property of the firm was as much bound by the attachment against one of its members as against all. (Smith v. Orser, 42 N. Y., 132; Phillips v. Cook, 24 Wend., 389; Waddell v. Cook, 2 Hill, 48, note a.) [MAJORITY — Church, Ch. J.] Church, Ch. J. We think that the plaintiffs were not entitled to deduct the check of $1,500, to Leary, from the balance due Blagge & Co. A check upon a bank does not operate as an assignment of the money deposited, specified in it. This has been repeatedly decided in this court. (3 Coms., 93; 2 Seld., 412.) A check is said to be a bill of exchange payable on demand. The drawee owes no duty to the holder until the check is presented and accepted. (Id.) The statement of the clerk to the holder, that the check was in order and would be paid before the attachment was served, is of no avail. A parol acceptance is not valid. (1 R. S., 768.) The promise did not bind the bank, and no action would lie upon it in favor of the holder. The case of Bullard v. Randall (1 Gray, 605) was similar in its circumstances to this; and the court held that they would not avail against the lien of a trustee process, served before the check actually reached the bank. When the attachment was served the check had neither been accepted, certified, or paid, nor had it in fact been presented for payment. The intervention of the attachment was without the fault of the plaintiffs, and they were in no way liable on account of the verbal statement that it would be paid. By leaving this amount to the credit of Blagge & Co., the mistake of the lesser sum of $1,000 was immaterial. The point that the attachment was against Blagge alone is not available. In the first place both parties alleged in the pleadings that it was against the firm, and the money was paid upon that assumption; and it is conceded that it was issued to collect a firm debt. A copy of the attachment was served upon the plaintiffs, and they could not allege payment by mistake in that respect. They are chargeable with knowledge of the contents of the attachment, and the payment was voluntary upon the attachment as issued. The judgment must be affirmed. All concur. Judgment affirmed.