Opinion
July Term, 1900.
Hamilton R. Squier [ Walter T. Elliott with him on the brief], for the appellants.
Robert L. Luce, for the respondent.
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 agent acquit itself?" If the New York bank had presented the check to the bank in Perth Amboy on the eleventh, the twelfth, or on the thirteenth of July, there is evidence sufficient to warrant the conclusion that it would have been honored, for that bank did not stop payment until July fourteenth. Judicial notice may be taken of the relative geographical locations of the borough of Manhattan, New York city and of Perth Amboy, N.J., and that the time for railroad travel and for the transportation of the mails between these places is less than two days. ( Parks v. Dold Packing Co., 6 Misc. Rep. 570; Fitzpatrick v. Papa, 89 Ind. 17; Pearce v. Langfit, 101 Penn. St. 507.) No reason is given for this delay, or for the course of sending this check through a third bank in New Brunswick, N.J. If this bank could not make a swifter collection, that is not to militate against the defendants, unless it were established that this course of plaintiff and of his bank met the measure that exacted presentation within a reasonable time. And in the absence of all evidence thereof, and in view of the relative geographical locations of the two places, the time of travel, the modern methods of communication and the postal facilities of the Middle States, the plaintiff fails to explain the delay from the morning of July eleventh until the close of banking hours on July thirteenth. I do not overlook the fact that the plaintiff sought to prove usage by calling the assistant receiving teller of his New York bank, who was questioned: "Are you familiar with the course of business in banks in the City of New York, and the method of their making collections on out-of-town banks?" and who answered: "Yes, sir; the check was put through the bank in the usual course of business and in the usual way, and it did not take any longer to present it at the Perth Amboy bank than is usually required in the ordinary course of business, when put through in the usual way." Possibly the answer refers to an usage or a custom of banks other than his own bank, but in any event there is no evidence of any general usage or custom that the defendant knew or ought to have known. ( Booth Brothers v. Baird, 87 Hun, 452; Kling v. Irving Nat. Bank, 21 App. Div. 373, 379; Dwight v. Cutting, 91 Hun, 38.) In Mohawk Bank v. Broderick (13 Wend. 133) the defendants were sued as indorsees of a check drawn in their favor on a bank in Albany, and several days previous to its date, the defendants transferred it to M., who, on the day of its date, deposited it in the Mohawk Bank at Schenectady, which retained it three weeks and then sent it to Albany, as was its usual course of business with the Albany banks. A daily mail passed between Schenectady and Albany. The chancellor says: "I think we should lay out of the question, the facts found by the special verdict as to the usual course of exchanges between the Mohawk Bank and the banks in the city of Albany, as there is no pretence that this check was drawn or endorsed with a view of its being negotiated or cashed at the Mohawk Bank, or that there was any usage of trade from which the defendants had reason to suppose it would be collected through that bank."
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.