Lead Opinion

- O’Brien,. J.:

■ The single question presented upon this appeal is whether or not the plaintiff upon the proof can recover.substantial damages. The appellant insists that when a depositor in á bank with sufficient funds draws checks or notes on such bank, which are refused payment on the ground that the depositor has no funds, the depositor, in an action brought against the bank, is not limited to the actual pecuniary damage alleged' and proved, bat in addition is entitled to recover, general or substantial damages.

Here the plaintiff neither alleged nor proved any special damage, but insists that it is’entitled to general damages upon the ground that this is in effect an action for slander of plaintiff’s financial credit, and that the conduct of the defendant as proved is equivalent to proof “ that the defendant on several occasions and to several people, willfully and maliciously spoke of and concerning the plaintiff the false and defamatory words as follows : He draws checks oh • a bank when he has not sufficient funds to meet them.” The insistence is that these words are slanderous per se, and, as the charges were admittedly false, malice will be presumed, and the plaintiff is, therefore, entitled to recover substantial damages.

Apart from the question as to whether a corporation can commit slander (Odgers Lib. & Sland. 368), and conceding that there is some similarity between actions for slander and actions against a bank for wrongfully refusing .payment of a check or note, the actions are not the same; and as the character of an action such as this has been frequently defined and discussed, it is safer to follow the decisions, rather thamenter a new field of inquiry. In Burroughs v. Tradesmen's Nat. Bank (87 Hun, 6) it is said : “ The contract which the law implies between a bank and its depositor is that the bank *365will hold the funds and pay them out according to the order of the depositor. A failure in the performance of the duty which the law thus imposes upon the bank constitutes a breach of the contract which the law implies and renders the bank legally liable either in tort or upon contract.” At the trial, on defendant’s motion, the plaintiff elected to treat this action “ as one in tort and not upon contract, and as founded upon malice and not upon negligence.”

As to the distinction to be observed as to the rule of damages between an action brought for the breach of a contract and one founded upon tort, we need add nothing to what was said by this court in Davis v. Standard National Bank (50 App. Div. 210), where the subject is fully discussed and the authorities- collated. Therein the awarding of general damages was sustained, but it was because the bank intentionally, and with full knowledge of what it was doing, dishonored its depositor’s checks, and in the opinion of this court it was said: “ Whenever the wrongful act is done intentionally, without just cause or excuse, a legal inference of malice arises therefrom.”

It is the presence of malice express or implied which in such cases determines the damages that may be awarded, and it is only, therefore, where it appears that the bank in refusing payment of checks acts willfully, without just cause or excuse, or with improper motives, that legal malice will be implied. This subject of legal malice will be found treated at some length in the American and English Encyclopaedia of Law (Yol. 19 [2d ed.], p. 623), and also in the first edition (Yol. 11, p. 6).

Without passing upon the question of whether the allegations of the complaint are sufficient to charge the defendant with legal malice, it is sufficient to say that upon the proof, it appearing beyond dispute that the failure of the bank to pay the note and check was not intentional, but was due to a mistake, there was no evidence from which legal malice could be implied, and, therefore, a basis for an award of general damages is wanting. A mistake which is excusable cannot constitute legal malice, for the element of conscious wrongdoing, or recklessness, or gross carelessness, is absent. There was no attempt to disprove the explanation offered by the bank to plaintiff’s officers that the occurrence was due to a mistake of a new bookkeeper; and it would appear that the plaintiff *366accepted that explanation- as true, as did the court in disposing of the case. The letters, moreover, tended to support, if support were necessary, the view that the failure to pay plaintiff’s paper was. inadvertent, and not intentional, and that as soon as the mistakes were called to the attention of the bank it did what it could to remedy them.

We have not overlooked the allegation of the complaint wherein it is averred that after the dishonor of the note the defendant was-informed thereof, “ and - the defendant then and there begged the plaintiff to overlook the occurrence, and requested that the note be again presented. Thereupon plaintiff caused the said note to be again duly presented, and again payment was refused, and said plaintiff’s note thrown out, protested and dishonored.” Had this allegation-been supported by proof a different question would arise as to the right of the plaintiff to recover substantial damages. The record,, however, fails to disclose any such proof, and the inferences fairly to be drawn from the entire case are that the bank, through mistake, refused to pay both the note and the check, and that when its attention was called to the two mistakes it at once undertook to remedy the errors so far as it was practicable to do so, by sending the letters of explanation to which we have referred.

Upon the question of damages, therefore, we can briefly summarize the subject by saying that, as the plaintiff neither alleged nor proved .any special damage, and as the evidence did not show that the defendant was guilty of legal malice, the court was right in restricting the recovery to nominal damages.

It accordingly follows that the judgment and order appealed from must be affirmed, with costs.

Van Brunt, P. J.,. Ingraham and McLaughlin, JJ., concurred; Hatch, J., dissented.

Dissenting Opinion

Hatch, J. (dissenting):

I am not able to agree with the majority of the court in its disposition of this case. Had the proof been limited to the dishonor of the first check, or even of the second, I would be disposed to hold that, under the facts as they existed, a verdict for substantial damages could not be sustained, but this is not what appears. Defendant was notified after the dishonor of the checks, and then discov*367ered the mistake which had been made by its bookkeeper. It became incumbent upon the bank to take steps which would prevent such mistakes in the future, and in the exercise of ordinary care by the bank future mistakes of this character would" have been obviated. After notice of the dishonor of the checks it dishonored the note and refused to pay it. For this act there is no excuse, and the jury had the right to find therefrom that it was guilty of such negligence in connection with the plaintiff’s account as to show a willful disregard of his rights and interests, and under such circumstances an award of substantial damages may be made. (Davis v. Standard National Bank, 50 App. Div. 210.) The court was not, therefore, justified in making disposition of the case by awarding nominal damages.

The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

Judgment and order affirmed, with costs.