65 N.Y.S. 1049 | N.Y. App. Div. | 1900
This is an appeal from a judgment of a Municipal Court for plaintiff in an action for goods sold and delivered, wherein the defense is payment. The defendants, in payment of the account, mailed a letter on July 3, 1899, at Tottenville, Richmond county, containing a check, dated July third, drawn by one Brown upon a bank in Perth Amboy, N. J., and addressed to plaintiff in New York city. The check, though received on July fifth, did not come into plaintiff’s hands until July tenth, whereupon he accepted it and returned a receipt of the account. On the morning of July eleventh the plaintiff deposited the check with the Fulton and Market Bank of New York city, and it was presented for payment to the bank at Perth Amboy on July fourteenth, but was dishonored, for the bank, on that day, had closed its doors. . I deem it unnecessary to place the legal responsibility for the delay between the delivery of the letter inclosing the check and actual receipt thereof, for the reason that even were the fault found in the defendants, that does not affect the subsequent omissions of the plaintiff that require a reversal of his judgment.
The burden of proving payment is upon the defendants. The giving and the acceptance of the check, in the absence of any agreement, was but a conditional payment (Bradford v. Fox, 38 N. Y. 289; Carroll v. Sweet, 128 id. 19) not affected by the return of the receipt. (Bradford v. Fox, supra) But if the defendants established the giving and acceptance of the check and that the plaintiff, in the attempt to collect it, was guilty of laches or neglect, to the defendants’ damage, such consequent loss is upon the plaintiff and the defense of payment is made out. (Bradford v. Fox, supra ; Greenwich Ins. Co. v. Oregon Improvement Co., 148 N. Y. 758; Smith v. Miller, 43 id. 171.) When plaintiff accepted the check he undertook to present it within a reasonable time. (Martin v. Home Bank, 160 N. Y. 190.) Did he fulfill his obligation, and, if he did not, was there resultant damage to the defendants ? When he received the check it was due instantly. He chose to deposit it in his bank in New York city. It is not necessary to hold that this was aught but a proper course, but, by his act, the plaintiff constituted the bank his agent so far as the rights and liabilities of the •defendants are concerned, and so the question is, '' How did the
Further, the evidence establishes that the defendants paid full face value of the check in cash to the drawer, Brown, and if the plaintiff recover of them, any attempt on their part to proceed against Brown might be met by his plea that the check was good when delivered, and had been kept good for a reasonable time by him, during which time it should have been presented for payment, and that it had been transferred by the defendants into the hands of third parties for value.
The judgment must be reversed and a new trial must be granted.
All concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.