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Supreme Court, May, 1920.

Therefore, in a wife's action for divorce, it is no defense that the parties are niece and uncle of the "half blood" and defendant's motion for judgment on the pleadings on the ground that the marriage was incestuous and void under section 5(3) of the Domestic Relations Law, will be denied.

MOTION for judgment on the pleadings.

Austin & Abruzzo, for motion.

Herbert J. Cuskley, opposed.

MITCHELL, J. This is a motion by defendant for judgment on the pleadings. The action is brought by the wife for absolute divorce on the ground of adultery. The plaintiff alleges that she was married to the defendant on September 25, 1904, and that thereafter, at various specified times from January, 1914, to the present time, her husband, the defendant, has committed adultery. The other necessary allegations are also made. The defendant has answered, one defense being a general denial, and in his answer he sets up a further and separate defense, alleging that the marriage between the plaintiff and defendant was incestuous and void. The facts as to the relationship between the plaintiff and defendant are set forth in full, from which it appears that Frank Audley, the father of the plaintiff, and this defendant, Thomas H. Audley, are half brothers, having the same father but born of different mothers. So that the plaintiff and defendant are niece and uncle, but of the half blood, as her father and the defendant were only half brothers. The plaintiff has served a reply admitting the relationship of the parties. If the marriage of the plaintiff and defendant was incestuous, as within the prohibitions of the Domestic Relations Law, it was and is void. In determining this question the court cannot consider the fact that the defendant has not presented the ques

Supreme Court, May, 1920.

[Vol. 112.

tion to the court until sixteen years after the marriage, and only now, when his wife asks for an absolute divorce on the ground of adultery. But it must be determined solely upon a construction of subdivision 3 in paragraph 5, article 2, of the Domestic Relations Law, constituting chapter 14 of the Consolidated Laws of the state of New York. Paragraph 5 provides that a marriage is incestuous and void between either (1) an ancestor and a descendant, (2) a brother and sister of either the whole or the half blood, (3) an uncle and niece or an aunt and nephew. The defendant contends that the 3d subdivision applies to an uncle and niece of the whole or half blood, and the plaintiff insists that no additional words can now be added to that subdivision so as to broaden its meaning. This 3d subdivision including uncles and nieces within the prohibited degrees was added to the statute in the year 1893. No case in the courts of this state has been called to my attention construing this subdivision. The cases cited from other states are based upon the wording and phrasing of the statutes of those states and should not be controlling in this case. When the original statute, section 5 of the Domestic Relations Law, was enacted, it contained only the prohibition against marriage between ancestor and descendant and between brother and sister of the whole or half blood. With this prohibition of marriage between brothers and sisters of the whole and half blood before them, the legislature in 1893 added a third prohibition, namely, marriage between uncle and niece or aunt and nephew, and made this the 3d subdivision of paragraph 5. A disregard of the provisions of paragraph 5 subjects the parties to a fine and imprisonment as well. The omission of the term "half blood" in this 3d subdivision plainly shows that they were not to be included. Since the legislature considered it necessary

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Supreme Court, May, 1920.

to include the half blood specifically in subdivision 2 relating to brothers and sisters, their failure to do it in enacting the 3d subdivision referring to uncles and nieces makes it evident that the prohibition was not to extend to the half blood. In construing this addition to the statute in 1893, we do not consider what legislation along those lines should be enacted, but simply the legal effect of such prohibitions as have been already placed upon the statute books. The motion of the defendant for judgment on the pleadings is, therefore, denied.

THE UNITED STATES MORTGAGE AND TRUST COMPANY, Plaintiff, v. LIBERTY NATIONAL BANK, Defendant.

(Supreme Court, New York Special Term, May, 1920.)

Negotiable instruments forged indorsements negligence of drawer no defense-bills, notes and checks — pleading · banks.

Where the names of the various payees of certain checks were forged by an employee of the drawer, who deposited the checks to his personal account in the defendant bank, which collected them from the bank upon which they were drawn, negligence on the part of the drawer is no defense to an action by the drawee to recover back the amount paid by it to defendant.

Demurrer to separate defense alleging negligence on the part of the drawer of the checks sustained, and plaintiff's motion for judgment on the pleadings granted.

ACTION to recover amount paid on certain checks.

Patterson, Eagle, Greenough & Day (Carroll G. Walter, of counsel), for plaintiff.

White & Case (Robert Forsyth Little and Joseph M. Hartfield, of counsel), for defendant.

Supreme Court, May, 1920.

[Vol. 112.

FORD, J. The plaintiff bank paid to the defendant bank certain checks upon which the names of various payees were forged. An employee of the drawer had come into possession of the checks, perpetrated the forgeries and transferred them to a third party who deposited them to his personal account in the defendant bank, which collected them from the plaintiff, the drawee bank.

The complaint states a good cause of action for the recovery of the amount so paid.

Negligence on the part of the drawer of the checks is set up as a separate defense to which a demurrer has been interposed and the recent case of Prudential Insurance Co. v. National Bank of Commerce, 227 N. Y. 510, is cited as authority for the validity of the defense.

That case was originally tried before me. Evidence of negligence of the drawer was received tending to prove that the drawer had or should have knowledge of the long continued practice of one of its general agents to forge the names of the payees on checks sent to him by their drawer, to deposit them on his own account and then make payment to the original payees by his personal checks. The negligence charged in the defense demurred to here is of a similar nature.

In the Prudential case as tried before me the question of the negligence of the plaintiff drawer was submitted to the jury, who found for the defendant drawee, thus sustaining the charge of negligence. The Appellate Division reversed (177 App. Div. 438) upon the ground that the defanse was untenable. Upon a new trial before another justice, he directed a verdict for the plaintiff in accordance with the decision of the higher tribunal. The trial court was affirmed as of course by the Appellate Division and the latter court reversed by the Court of Appeals in a

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Supreme Court, May, 1920.

decision which was in effect an affirmance of my own view of the law upon the first trial.

Thus appears the reluctance with which the courts have gone even so far as they did go in the Prudential case, which merely sanctioned the interposition of the defense of negligence as between the drawer and drawee. To permit the negligence of the drawer to be set up in an action between the drawee and its immediate indorser, to which action the drawer is not a party, would be an extension of the rule not only unwarranted by anything in the Prudential case itself, but opposed to the well-settled policy of the law to guard the integrity of indorsements on negotiable paper passing in good faith from hand to hand and serving beneficently the ordinary purposes of commerce and finance.

The motion is granted and the demurrer sustained, with ten dollars costs.

Motion granted, with ten dollars costs.

LOUIS HEUBSCHMAN, Plaintiff, v. JULIUS G. KUGELMAN and MAX YAN KAUER, Defendants.

(Supreme Court, New York Special Term, May. 1920.)

Pleading when amendment of course must be exerciseddemurrer service Code Civ. Pro. § 542.

Pleadings are steps in a litigation preliminary to judgment. The right to amend as of course must be exercised within the period when the case is in the course of pleading. Therefore, where within twenty days after the service of an answer a demurrer to separate defenses therein was sustained with leave to serve an amended answer, on terms which defendants have not availed of, defendants have no right under section 542 of the Code of Civil Procedure, within said twenty days, to serve an amended answer as of course, and a motion to compel acceptance thereof will be denied.