385 Mass. 1012

April 13, 1982

The sole issue in this case is the existence, vel non, of probable cause to believe that the defendant was committing or had committed an offense which would authorize the police to arrest him without a warrant (see Commonwealth v. Bowden, 379 Mass. 472 , 476-477 [1980]), and to conduct a search incidental to the arrest. See Wong Sun v. United States, 371 U.S. 471, 479 (1963). We agree with the analysis and conclusion of the Appeals Court (Commonwealth v. Alabarces, 12 Mass. App. Ct. 958 [1981]) that there was no probable cause for the arrest and hence, no legitimate basis for the search incidental to the arrest.

Judgment reversed.

Verdict set aside.

Judgment for the defendant.


385 Mass. 1012

April 15, 1982

The plaintiff, a depositor of the defendant Freedom Federal Savings & Loan Association (Freedom) purchased from Freedom a check for $2,500 payable to Spallieri Francesco. The check was drawn by Freedom on the defendant The First National Bank of Boston (First National) and entrusted to John Grosso, an employee of Stabile & Co. Travel Agency Inc., with instructions to mail it to Francesco in Italy. In his complaint, filed in the Municipal Court of the City of Boston, the plaintiff alleged that Grosso forged Francesco's name and cashed the check at First National. Freedom's motion to dismiss for failure to state a claim upon which relief could be granted (Mass. R. Civ. P. 12[b][6], 365 Mass. 754 [1974]) was allowed, and a similar motion by First National was denied. The plaintiff requested a report to the Appellate Division (see G. L. c. 231, Section 108) based on the trial judge's allowance of Freedom's motion to dismiss. First National also claimed a report on the denial of its motion. The Appellate Division dismissed the plaintiff's report and allowed the report of First National. From these actions of the Appellate Division, the plaintiff appeals.

The plaintiff's case, found as it is on what formerly was called the common count of money had and received, must fail because he received value when he purchased the check from Freedom, and Freedom is not wrongfully retaining money which belongs to the plaintiff. See Stone & Webster Eng'r Corp. v. First Nat'l Bank & Trust Co., 345 Mass. 1 , 4 (1962). Equally meritless is the plaintiff's argument in favor of recovery from First National. The money received by First National was Freedom's

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money, not the plaintiff's. Grosso's forgery does not spawn a theory of recovery by the plaintiff, who was not a party to the instrument. See United States v. First Nat'l Bank, 263 F. Supp. 298, 301-302 (D. Mass. 1967).

We affirm the order of the Appellate Division dismissing the plaintiff's report and allowing the report of the defendant The First National Bank of Boston.

So ordered.


[Note 1] The First National Bank of Boston, John Grosso, and Stabile & Co. Travel Agency Inc.