7 A.D.2d 978 | N.Y. App. Div. | 1959
Order and judgment unanimously reversed upon the law, with costs to the appellant, the plaintiff’s motion for summary judgment is denied and the defendant’s cross motion for summary judgment is granted, with $10 costs, and judgment is directed to be entered in favor of the defendant dismissing the complaint, with costs. While there is considerable force to the argument that plaintiff’s rights against defendant accrued at the time of the breach (acceptance of the uncertified cheek), and that consequently plaintiff had the right, even perhaps the duty, to deposit the cheek and thus possibly avoid damage, we feel constrained nevertheless, to hold that plaintiff, on the facts of this case, may not have judgment in view of Bathbun v. Citizens Steamboat Co. (76 N. Y. 376) decided by the Court of Appeals in 1879. There it was held that the plaintiff — by depositing a check which had been accepted by the defendant carrier contrary to instructions to accept only cash — ratified
