
    The Merchants National Bank of Poughkeepsie, Resp’t, v. Edward B. Parker et al.,App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 13, 1887.)
    
    Checks—Delay in presenting releases indorser.
    The firm, of which Parker was a member, drew a check on the plaintiff bank payable to the defendant, Russell, who transferred it to a third party. This third party held it six days and then deposited it in the plaintiff bank. If it had been presented any day before the day on which it was presented it would have been paid. The check was protested, and within ,a few days the said firm failed. Held, that the delay in presenting the check discharged the defendant, Russell, as indorser.
    Appeal from a' judgment in favor of the plaintiff' rendered at the Dutchess county special term.
    On January 31, 1887, Parker & Co. made their check on the City National Bank of Poughkeepsie for $80.82, payable to the order of defendant Russell. This check was indorsed by Russell, and transferred to defendant Holmes on February three. Holmes kept it until the ninth of February, when it was deposited in the plaintiff bank. It-was protested the next day, February tenth. The notary at the plaintiff bank mailed notice of protest to Holmes on that day, and enclosed with it a notice for defendant Bussell. Holmes received the notice February eleventh. The notice for Bussell was taken by the witness, Edward Drake, • enclosed in an envelope addressed to Evart D. Bussell, Pleasant Valley, and deposited in the post-office in that village on the fourteenth of February. Mr. Holmes- and Mr. Bussell both lived in that town, and received their mail matter at the same office. Parker & Co. made an assignment on February sixteenth. Their checks were all paid on presentation at the City National Bank until February ninth. A draft of theirs for $368.75 was certified on the seventh of February. This check would have been paid any time before February ninth.
    
      L. G. Dodge, for resp’t; A. M. & G. Card, for app’lt Russell.
   Pratt, J.

Had the check been presented within five days from the time appellant paid it to Holmes it would have been paid. We think that delay discharges the indorser.

The .preponderance of evidence is that the notice of protest received by Holmes on the eleventh was not sent to appellant till the fourteenth, which is also fatal.

We see no way to sustain the judgment, which must be reversed, with costs.

Dykman, J. concurs; Barnard, P. J., not sitting.  