2 Trans. App. 344 | NY | 1867
The question in this case is, whether the defendant was discharged as drawer of the first draft, as his supposed liability as such was the sole consideration upon which the one in suit was drawn, and that was drawn in ignorance of the facts upon which it is now claimed such liability had been discharged. The question is not affected by the fact that funds had been placed in the hands of the drawee by the drawer for the purpose of paying this particular draft, as the liability of the latter in such a case is the same as it is where the former is in funds for the payment of the general drafts of the drawer. The first ground upon which the defendant claims to have been discharged is, that the Nassau Bank, the agent of the holder for the collection of the first draft, accepted the check of the drawee for its amount, drawn upon a city bank, upon presenting the draft for payment at the place of business of the drawer in the city of New York. Although payment of such check was refused by the bank, so far as the drawer is concerned, it is clear that the check was no payment. He, therefore, did not pay the draft. The obligation of the defendant was that he should pay upon presentation. The draft was presented and payment neglected by the drawer; giving the check being no payment, as to him, unless paid. That created a contingent liability against Thompson, the drawee, and may be ■ regarded as equivalent to the taking by a creditor of an obli
All the judges concurring, except Davies, Ch. J., .and Bockes, J., . ■
Judgment affirmed.