12 Misc. 20 | New York Court of Common Pleas | 1895
Defendant drew her check for $450 against her account with the Madison Square Bank on August 8, 1893, payable to her own order, and indorsed the same, receiving the amount called for thereby from the Hoffman House, to the credit of whose ac
An objection was made that the complaint did not allege, nor was it proven, that presentment for payment had been made and prompt notice of dishonor given to the defendant, and the point .is now presented. In view of the further facts alleged in the complaint and proven at the trial, an allegation and proof of presentment and notice were not necessary. A drawer of a check is discharged from liability by reason of the drawee’s default if presentment for payment is delayed beyond the space of one day after its delivery (Railroad Co. v. Collins, 57 N. Y. 641; Kelty v. Bank, 52 Barb. 328; Cawein v. Browinski, 6 Bush, 457; Strong v. King, 85 Am. Dec. 336); but, where the drawee suspends payment within the time required for presentment, such presentment and notice of dishonor are not essential in order to charge the drawer (Lovett v. Cornwell, 6 Wend. 370, s. c. affirmed, reported Cromwell v. Lovett, 1 Hall, 64). See, also, Railroad Co. v. Collins, 3 Lans. 29. So, also, where the drawee has no funds of the drawer wherewith to pay the check (Little v. Bank, 2 Hill, 425; Bank v. Broderick, 10 Wend. 304; Murray v. Judah, 6 Cow. 490; Brush v. Barrett, 82 N. Y. 400; Franklin v. Vanderpool, 1 Hall, 88, 3 Am. & Eng. Enc. Law, p. 212, and cases cited;. Daniel, Neg. Inst. § 1596); and the same rule properly applies in the case of a partial deficiency of deposit to meet it (Daniel, Neg. Inst. § 1597; Eichelberger V. Finley, 7 Har. & J. 381). Upon the day when the ■check in suit was drawn, the defendant’s account with the Madison Square Bank was credited with but $440.63 (an amount insufficient to meet the check), and that bank had suspended payment within the time allowable to the holder, the St. Nicholas Bank, for presentment. 3 Am. & Eng. Enc. Law, p. 214. Hence the objection was not well founded.
The only other point raised by the defendant, and presented in support of the exception to the denial of the motion for dismissal of the complaint, is that the St. Nicholas Bank, by reason of the contract made with the Madison Square Bank to pay its ■depositors’ checks when presented at the clearing house, practically stood in the shoes of the latter, and that the most which it could demand from the defendant upon this check would be the difference between her deposit with the Madison Square Bank .and the amount paid. This position is not tenable. The evidence
Exceptions overruled, and judgment for plaintiff upon the verdict as directed below, with costs. All concur. ,