136 Misc. 328 | N.Y. Sup. Ct. | 1930
Upon a reconsideration of the issue herein involved, I am satisfied that the jplaintiff is entitled to the relief originally sought. It is alleged that on or about the 24th day of April, 1929, the defendant made and delivered a certain check drawn on the plaintiff’s banking institution in the sum of $848. Upon presentation to the plaintiff the check was certified and the amount subsequently paid to the holder thereof. It is further claimed that at the f.imR of the said payment the defendant depositor had on deposit the sum of $64.38 only. Defendant by way of answer sets forth that the plaintiff cannot recover because the certification of the check and the payment thereof was due to the negligence of the plaintiff in not verifying the amount defendant had on deposit. Plaintiff originally moved for judgment on the pleadings on the ground that the negligence of the plaintiff in certifying the check was no defense to the action; that it was an action for money paid, laid out and expended on behalf of the defendant and was in the nature of an overdraft.
After reconsidering the proposition involved, the court is of opinion that as between the maker of the check and the bank the question of the latter’s negligence in honoring the instrument is immaterial. Without question, “ as between a banking firm and a depositor not a member of the firm, an overdraft is a loan. The payment of the latter’s check when no funds stand to his credit is an advance by the firm of its own money, for the repayment' of
The motion for judgment on the pleadings as sought by the plaintiff is granted.