
    Louis Dehoust, Appellant, v. Samuel Lewis, Respondent.
    Second Department,
    October 16, 1908.
    Bills and notes—presentation of check for payment — reasonable time — sale — defense of payment by check — burden of proof— evidence sustaining burden — insolvency.
    Where a check is sent by mail and received by the payee the day after it is drawn, the reasonable time for presentation to the drawee under section 322 of the Negotiable Instruments Law is extended only until the expiry .of the day following its receipt.
    The fact that the payee indorsed the check to a third party does not extend the period of reasonable time as between the drawer and payee.
    Where in an action for goods sold and delivered, the answer alleges the delivery of the check in full payment, the burden is upon thé defendant to show delivery, acceptance and the loss to him through laches on the part of the payee by failing to present the check to the drawee within a reasonable time.
    
      A defendant sustains such burden by showing delivery, acceptance and that the bank upon which the check was drawn- did not close it's doors until twelve days ■after the receipt of the check by the payee during which time other checks of the drawer had been paid, he having during the period sufficient funds to meet the check.
    Although a bank by closing its doors does not conclusively commit an act of insolvency, it. will be taken as such in the absence of proof to the contrary, and the presumption of such insolvency continues.
    •Appeal by the plaintiff, Louis Dehoust, from a judgment of the Municipal Court of the city of New York, borough of Bróoklyn, in favor of the defendant, rendered on the 27th day of February, 1908.
    
      David Siegelman, for the appellant.
    
      Charles Burstein, for the respondent.
   Jenks, J.:

This is an appeal from a judgment of the- Municipal Court dismissing, the complaint on the merits. The action is for goods sold and delivered. The answer alleged delivery of a check for the full amount of the claim. At the trial the plaintiff rested on the pleadings. By admissions and undisputed evidence the defendant showed that he drew such a check in favor of' the plaintiff on October 11, 1907, dated that day, on the Borough Bank, which .was received by the plaintiff .on the morning .of October 12, 1907; that the check was deposited by an indorsee in the First National Bank on October 23, 1907, and that the parties and the Borough Bank reside in-the samfe borough of the city of New York. The plaintiff did not offer any testimony in rebuttal, and at the close of the Case each party moved for judgment.

Section 322 of the Negotiable Instruments Law (Laws of 1897,. chap. 612) provides: “ A check must be presented for payment within a reasonable time after its issue or the drawer, will be- discharged-from liability thereon to the extent of the loss caused by the delay.” The court was justified in the conclusion that the check was not presented within a reasonable time, for the general rule in such a case as this is that the reasonable time ends with the next day, after the date of the check. (Eaton & Gilbert Com. Paper § 167; Wood’s Byles on Bills [7th Am. ed.], 19; Smith v. James, 20 Wend. 192, cited in Carroll v. Sweet, 128 N. Y. 19, 22.) Even though the check was not received through the mail until October 12, nevertheless the reasonable time for presentation would only be extended until the expiry of October 13. The fact that the payee indorsed the check to a third party did not extend the period of reasonable time as between the drawer of the check and the payee. (Daniel Neg. Inst. [5th ed'.] § 1595, and cases cited; Carroll v. Sweet, supra.) The mere delay in presentation of the check for payment did not discharge the drawer save to the extent of his loss caused by it. (Neg. Inst. Law, §322; Carroll v. Sweet„supra ; Eaton & Gilbert Com. Paper, § 167, citing Story Prom. Notes, § 498.) As this action was upon the pre-existing debt for which the check was delivered, the defendant pleading payment must show delivery, acceptance, and loss to him through the laches in presentation of the check. (Daniel, supra, § 1588, citing Syracuse, Binghamton & N. Y. R. R. Co. v. Collins, 3 Lans. 29; affd., 57 N. Y. 641.) The burden would have been upon the plaintiff to show that the drawer had not suffered loss by the laches if the action had been upon thé check. (little v. Phenix Bank, 2 Hill, 425 ; Daniel, siopra.) I think, however, that the defendant sustained the burden, because he showed delivery, acceptance; that the bank closed its doors bnt only 12 days after the receipt of the check by the payee; that all of his other checks had been paid, and that he had throughout the time intervening the drawing of the check and the closing of the bank, and at its close sufficient funds to meet the check. The closing of the'doors of the bank, without any other circumstances to refute such a conclusion, may well be taken as an act of insolvency, though such act is not conclusive. (People v. Oriental Bank, 124 App. Div. 741.) And the presumption of insolvency continues. (Lawson Presump. Ev. 172, and cases cited.) After the evidence put in by the defendant it was incumbent upon the plaintiff, if he could, to meet it, otherwise the defendant’s case justified the judgment pronounced by the court. The. check is, however, still extant, ana in the hands of the plaintiff, and may be presented at any time to the bank upon which it is drawn.'

The judgment is affirmed, with costs.

Woodward, Hooker, Gaynor and Rich, JJ., concurred. ■

Judgment of the Municipal Court affirmed, with costs.  