Opinion
March 8, 1912.
Charles H. Tuttle, for the plaintiff.
Enos Throop Geer, for the defendant.
This action is brought to recover the amount of a check drawn by the firm of Lathrop, Haskins Co. upon the National City Bank to the order of the defendant, which he indorsed and deposited to his credit in his drawing account with the plaintiff, and which was subsequently dishonored. On the same day, and before the close of banking hours, plaintiff indorsed and transferred the check to the National Bank of Commerce, which presented it to the City National Bank for payment at about ten o'clock in the forenoon the next day. Payment was refused on the ground that the drawer's account was not good for any part of the amount. The check was thereupon protested in due form. In the meantime the defendant had withdrawn the amount thus credited to his account. The defendant put in issue the allegations of the complaint with respect to the presentation of the check for payment, and alleged that plaintiff did not use due diligence in presenting it, and did not present it within a reasonable time, and, further, that the indorsees and holders of the check subsequent to the defendant did not use diligence in presenting it for payment, and did not so present it within a reasonable time, whereby the face value thereof was lost to him and he was discharged from liability. Plaintiff moved for relief in the alternative either that these allegations with respect to its failure and the failure of the other indorsees of the check to present it within a reasonable time be made more definite and certain, or that defendant be required to give a bill of particulars of his claim in this regard. The court declined to require that the pleading be made more definite and certain, but granted the motion for a bill of particulars. The defendant thereupon appealed from the order in so far as it granted one alternative of the application; and in so far as it denied the other alternative plaintiff appealed with a view to protecting itself in the event that it should be decided that plaintiff was entitled to have the allegations made more definite and certain, but not a bill of particulars. Plaintiff credited the defendant's account with the amount of the check and permitted him to withdraw the money, and seeks now to hold him as indorser, and, therefore, it has the burden of showing presentation of the check within a reasonable time before it is entitled to recover. (Daniels Neg. Inst. § 669a; Jaffray v. Krauss, 79 Hun, 449.) No new issue was presented by the allegations in the answer with respect to the failure of the plaintiff and its succeeding indorsees to present the check for payment with due diligence. If the facts are undisputed, the question as to whether or not the check was presented for payment within a reasonable time will become a question of law for the court to decide, and if they should be controverted it may be necessary to have the jury determine the facts and apply the law as charged by the court. We are of opinion, therefore, that the plaintiff was not entitled to relief upon either theory.
It follows that the order, in so far as it is appealed from by the plaintiff, should be affirmed, and in so far as it is appealed from by the defendant, it should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
CLARKE, McLAUGHLIN, SCOTT and DOWLING, JJ., concurred.
On defendant's appeal, order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and on plaintiff's appeal, order affirmed.