207 Misc. 840 | N.Y. App. Term. | 1955
On July 29, 1952, plaintiff opened a “ Check Master ” account with defendant bank. On the signature card signed by him at that time appears the following : “ This account is subject to the rules governing Check Master accounts printed in the passbook, the Depositor’s Agreement or the Deposit Balance Form one of which has been delivered to and accepted by the Depositor to which rules and conditions the Depositor agrees by the delivery hereof to the bank.”
On or about April 9,1954, plaintiff issued two postdated checks to one I. Shapiro drawn on defendant bank in the amounts of $200 and $300, respectively. The latter check, though dated April 16,1954, was deposited by the payee on April 9,1954, and paid by defendant on April 12, 1954. Defendant conceded that plaintiff called in person on- April 13, 1954, for the purpose- of stopping payment and was told that payment of the check could not be stopped' in advance of its due date and, as a matter of fact, that payment on the check had been made the previous day.
The. gravamen of plaintiff’s-action is the breach of the contract “ of ag*ency ” in honoring* the postdated check before its maturity date and for negligence in making payment thereon. From a judgment in defendant’s favor plaintiff appeals.
The common-law rule- of liability of a bank in paying prer maturely a postdated check is succinctly set forth in Corpus Juris Secundum (Vol. 9, p. 696, § 345): “A postdated check is payable on or at any time after the day of its date, being in effect the same as if it had not been issued until that date; the bank ought not to pay it, if presented earlier, and if it does the depositor can recover his money.” (See, also, Morse on Banks and Banking [5th ed.], Vol. 1, p. 698, § 389, subd. (a) ; Godin v. Bank of Commonwealth, 6 Duer 76 ; Dousmanis v. Colonial Bank, 134 Misc. 472, affd. 228 App. Div. 809.)
A bank’s common-law liability may be limited where the limitation “ has the assent of the depositor.” (Gaita v. Windsor Bank, 251 N. Y. 152, 155.) Defendant contends that such an agreement limiting its liability was entered into herein as evidenced by the “ rule ” printed at the foot of the statement of account mailed quarterly to plaintiff to the effect that it “will not be responsible for payment of postdated checks”.
Moreover, the 1 ‘ rule ’ ’ itself is not sufficiently broad to relieve defendant from the consequences of its own negligence. The language employed by defendant in this connection must be strictly construed and most strongly against it. In the case of Howard v. Handler Bros. & Winell, (279 App. Div. 72, 75-76, affd. 303 N. Y. 990), the court stated : “ The law does not look with favor upon attempts to avoid liability for one’s own fault, and although it is permissible in instances to contract one’s self out of liability for negligence, such a result is not to be countenanced unless it is absolutely clear that such was the understanding. It must be precisely provided that limitation of liability extends to negligence or other fault of the party attempting to - shed his ordinary responsibility.” (Emphasis supplied.) (See, also, Boll v. Sharp & Dohme, 281 App. Div. 568.)
The foregoing principle, in its application to the construction of bank rules, finds apt expression in the case of Elder v. Franklin Nat. Bank (25 Misc. 716, 719). There an action had been brought by a depositor against the bank for failure to comply with a stop payment order. The defense was predicated on a provision in the passbook which read a follows : “It is further agreed that the bank shall not be responsible for the execution of an order to stop payment of a check previously drawn; that the bank will endeavor to execute such orders, but that no liability shall be created by failure so to do, and that no rule, usage or custom shall be construed to create such liability. ” The Appellate Term, First Department, held that the agreement was to be construed so as to afford immunity from liability to defendant only “ where the bank has exercised ordinary care in that regard” and made the following pertinent observation:
Upon the trial of the instant case there was no showing by defendant that it used due care to avoid premature payment of the check. Moreover, even if plaintiff had assented to the “ rule ” in question, it is difficult to conceive that such payment was not made without carelessness on the part of an officer or employee of the hank.
The judgment appealed from should be reversed, with $30 costs to plaintiff, and judgment directed for plaintiff as prayed for in the complaint with appropriate costs in the court below.
Pette and Di Giovanna, JJ., concur.
Judgment unanimously reversed, upon the law and facts, with $30 costs to plaintiff, and judgment directed for plaintiff as prayed for in the complaint, with appropriate costs in the court below.