205 A.D. 429 | N.Y. App. Div. | 1923
When the plaintiff on March 13, 1916, went to the Rochester office of the defendant, she told an employee of the defendant that she wanted to send $300 to her mother in Germany. Whatever she may have then had in mind as to the method to be pursued in transmitting the money, she in fact then bought and paid for a negotiable foreign check for 1,618.15 marks drawn by the defendant to the order of Mary Eder, plaintiff’s mother, on the Dresdner Bank, at Munich, Germany. (Neg. Inst. Law, §§ 210-215; Amsinck v. Rogers, 189 N. Y. 252.) A similar foreign check for 2,010.70 marks was purchased from the defendant by the plaintiff ten days later. Plaintiff posted registered letters to her mother containing these checks, but the letter containing the first check did not reach Mrs. Eder in Germany until August, 1919, and the other letter has never been delivered by the postal authorities to Mrs. Eder.
Although the plaintiff in July, 1916, demanded of the defendant a return of the amount paid by her for the checks, she was not then able to return the checks themselves, nor did she offer defendant indemnity against loss which might arise from the outstanding instruments. (Civ. Prac. Act, § 333.)
The payee never presented either of the checks to the drawee. She did not take advantage of the provisions of the law providing a method for the presentment of lost negotiable instruments. (Neg. Inst. Law, § 268.)
Without presentment, followed by protest, the payee could not maintain an action upon the checks against the drawer. (Neg. Inst. Law, § 260; Amsinck v. Rogers, supra; Heinrich v. First Nat. Bank, 219 N. Y. 1.) A fortiori, the plaintiff cannot maintain this action.
Even should we assume that the plaintiff intended to send money to her mother by means of purchasing a credit in Munich, to be there established by the defendant to her mother’s order, and that the checks were but evidence of such credit, the plaintiff is in no better position. The burden would rest upon her to show a breach of defendant’s contract on its part. The record discloses no evidence that a credit was not established by the defendant with the Dresdner Bank.
The judgment appealed from should be reversed on the law
All concur.
Judgment and order reversed on the law and a new trial granted, with costs to appellant to abide event.