41 N.Y.S. 399 | N.Y. App. Div. | 1896
The 1st of June, 1892, the plaintiff commenced this action against the defendants, who were bankers transacting business at Spring-ville, N. Y., to recover upon an instrument in writing, of which the following is a copy :
“ Certificate of Deposit.
.“$200 Dolls. Springville,. N. Y., June 11, 1875.
“ Mr. Luzern Eaton has deposited in this bank two hundred dol lars, payable to the order of himself, 3 mos. after date, in current
*366 funds on return of this certificate properly endorsed, and shall
receive interest at the rate of 7 per cent, per annum if left-
months from date.
(Signed) E. 0. LELAND, ■
“No. 2092. $200 Cashier.”
The defendants, among other defenses, alleged in their answer “ that at the time this action was commenced more than six years had elapsed since the cause of action set forth in the complaint accrued.” The cause of action had been assigned by Eaton to plaintiff. No demand was made upon the defendants for the payment of the certificate until the spring of 1892, when the plaintiff presented the certificate to. the defendants and demanded'payment, which was refused. No part of the-amount evidenced by the Certificate has been paid. The trial court held the statute a bar to the action and' dismissed the complaint. The question before us is whether the conclusion of the trial court can be sustained.
The appellant claims that the instrument above set forth is a certificate of deposit simply, and that a demand of payment thereof was necessary before the Statute of Limitations would commence to run against it..
The respondents claim that the instrument sued upon is, in effect, a promissory note .that became due by its terms three months-after its date, and that the Statute"of Limitations commenced to run at the expiration of the said three months.
. It is well settled in this State that in a deposit of money, evidenced" by the ordinary certificate, which simply acknowledges a deposit, a demand is necessary before action brought, and that the Statute of Limitations does not commence to run until such demand is made. (Payne v. Gardiner, 29 N. Y. 146 ; Downes v. PhcenixBank of Charlestown, 6 Hill, 297; Howell v. Adams, 68 N. Y. .314; Dorman v. Gannon, 4 App. Div. 458, and cases cited.)
The hanks, in case of an ordinary deposit, are simply the custodians of the money, subject to the demand of the owner of the fund. But the instrument we are considering in. this case contains the elements of a promissory note, and is a very different instrument from the ordinary certificate of deposit.
Blackstone defines a promissory note to be “ A plain and direct engagement in writing to pay a sum specified at the time therein limit
Kent defines it to be “ A written promise by one person to another for the payment of money at a specified time absolutely and at all events.” (3 Kent’s Com. 74.)
Chitty defines it to be “ A promise or engagement in writing to pay a specified sum at a time therein limited, or on demand, or at sight, to a person therein named, or his order or to the bearer.” (Chitty on Bills [12th ed.], 585, *516.)
Our Revised Statutes (1 R..S. 768, § 1) sanctions the correctness of these definitions.
In Hunt, Impleaded, etc., v. Divine (37 Ill. 137) the action was upon a certificate which was as follows:
“ Banking House of E. T. Hunt & Co., 1 Sycamore, III., March 9th, 1861. f
“ C. M. Chase, Esq., has deposited in this hank two hundred and eighty dollars and fifty cents in currency, subject to the order of himself, and payable in like funds on return of this certificate, three months after'date.
“ (Signed) E. T. HUNT & CO.
• “ (Endorsed) C. M. Chase.” ■
This instrument, it will be observed, is to the same effect and nearly in the same language as the one in the case before us. The Illinois Supreme Court held' that the instrument in the case was a promissory note governed by the rules and principles applicable to that class of paper. The court said, at page 144, in commenting upon the effect of the statement, that the certificate was payable upon the return thereof; that those words did not change the legal effect of the undertaking; and it added: “In every promissory note there is an implied undertaking by the payee or holder to return it to the maker on payment of the money. An express-undertaking to return it could have no greater force, nor could it change or modify the legal effect of the instrument. All that the maker can demand is that he shall be protected against the reappearance of the instrument and against another recovery upon it. This is effectually accomplished b'y producing the instrument on the trial for cancellation, if need be ”— citing Edwards on Bills &
In Miller v„ Austen (13 How. [U. S.] 218) the Supreme Court of the United States held, in effect, that an instrument, like the one in the case at bar, was a negotiable promissory note.
The instrument in this case has the elements of a promissory note. It contains ah absolute promise to pay the amount specified therein at a certain time (three months from date), and this, instrument is clearly taken out of that class of instruments which are recognized as ordinary certificates of deposit.
A direct authority for the position here assumed is The Bank of Orleans v. Merrill (2 Hill, 295), where the Clinton Bank issued a certificate of deposit payable to the order of S. Benedict, at six months, with interest, of which the plaintiff was indorsee. The court in that case held that the instrument was, in effect, a negotiable promissory note.
The appellant seems to rely upon Howell y. Adams (supra), where the certificates of' deposit provided that, if the money remained on deposit six months, interest would be paid at five per cent per annum. In all other respects the certificates were in the ordinary form. Judge Andrews says, at page 321, that within the cases of Downes v. Phoenix Bank and Payne v. Gardiner (supra), and in accordance with the general understanding of the commercial community, the bank would not be liable to its depositor except upon demand. That case is plainly distinguishable from the one at bar, because the certificates there contained no promise to pay either principal or interest, but simply provided that interest would be paid upon the contingency of the money remaining on deposit for six months.
We are of the opinion, both upon principle and authority, that the contention of the respondents here must be sustained, and we must hold that the cause of action set forth in the complaint of this action is barred by the Statute of Limitations, and that the judgment should be affirmed.
All concurred.
Order affirmed, with costs.
