
    Ferdinand Schoen, Appellant, v. The Security Bank of New York, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1913.)
    Banks — certification of checks — evidence — question as to whether defendant’s certification of check was “ gross negligence.”
    Where a bank certifies a check on the day prior to its date, it becomes a debtor thereon and is bound to pay it.
    Where before such a cheek was paid the drawee notified the bank and stopped payment, but the check was paid by the bank, and its answer in an action to recover the amount was that the check was properly made and that plaintiff had no balance, the fact that plaintiff signed a card upon opening his account with defendant which, among other things, above his signature, stated “ that while the bank will exercise ordinary care in relation to post dated checks or stop- orders it shall not be held responsible by the undersigned if such check be paid” was prima fade evidence that plaintiff read what preceded his signature and if was defendant’s right to have submitted to the jury the question whether in the circumstances the certification of the check was the exercise of due care; and, where the question whether defendant’s certification of the check was “ gross negligence ” or not was left to the jury, a judgment entered on a verdict rendered for defendant will be reversed.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, entered in favor of the defendant on the verdict of a jury.
    Julius J. Popper, for appellant.
    Herman B. Groodstein, for respondent.
   Bijúr, J.

The plaintiff drew a check upon his account with defendant to the order of one Moe Kraus for the sum of $290, dated November 26,1912. Defendant- certified the check on November twenty-fifth. On the morning of the twenty-sixth — at ten o ’clock, according to plaintiff, at eleven fifteen, according to defendant— but at all events, before the check was pail, plaintiff notified the defendant that he stopped payment of the check. Subsequently the check was paid by the bank. After having demanded the amount from the bank, which refused to pay it, plaintiff brings this action.

There is no substantial dispute as to the facts except as to the hour when plaintiff sought to stop the check, as above indicated. The answer of the bank is, in substance, that the payment of the check was properly made, and that, therefore, plaintiff had no balance.

The learned trial court submitted to the jury the question whether the plaintiff had notified, the bank at ten o ’clock or at eleven fifteen. He also charged them that there was no evidence of damage to the plaintiff, whereby, apparently, he referred to the fact that it had been shown that plaintiff gave this check to Kraus for a consignment of turkeys, and post-dated it so that he might have an opportunity to examine them. The seller testified that they were actually examined at the time the check was given, and that plaintiff had admitted that they were perfect, and that he accepted them as such. Finally, the learned judge left to the jury the question whether certifying the check the day before its date was “ gross negligence ” or not.

On this appeal, the respondent claims that there was an account stated, but that question was not submitted to the jury at all. While one of plaintiff’s requests to charge was not justified, he seems to have noted sufficient exceptions to the main charge.

The briefs on both sides cite the case of Clarke Bank v. Bank of Albion, 52 Barb. 593, which decides that a holder of a post-dated check which shows on its face that it has been certified before its date is put upon inquiry as to power of the cashier to make such certification, and that, as matter of law, ordinarily a cashier is without authority to make the same. Had the plaintiff moved for the direction of a verdict below on the authority of this case, the motion must have been granted, but, as the minutes show that no such motion was made, we are compelled to determine this appeal upon the record presented.

I shall, therefore, assume, for the purposes of this appeal, that when the bank certified the check a day before it was due it became a debtor thereon and was bound to pay it. First Nat. Bank v. Leach, 52 N. Y. 350. See also Crawford v. West Side Bank, 100 N. Y. 50. Whether, therefore, the plaintiff, as drawer, notified the bank to stop it, seems to be entirely immaterial; but if that question were material, the fact that plaintiff admittedly notified the bank before it actually paid the check disposes of that issue completely.

As to the damages to the plaintiff, it seems to me that the payment of $250 of his money without authority to a third person is concrete damage sufficient to sustain a judgment. The testimony as to the transaction in turkeys is totally irrelevant to the issues involved in the case..

While, as noted above, the question of an account stated was not submitted to the jury, it should not be overlooked that such a claim cannot properly be based on the signature of the plaintiff to an account card of the defendant by which the plaintiff merely certifies that seventeen October and thirty-six November vouchers have been received by him. See a somewhat similar case, Godin v. Bank of Commonwealth, 6 Duer, 82.

The only question actually involved on the present record therefore, is whether the bank exercised “ ordinary care°” in certifying this check. That question arises because of a card reading: “Authorized signature of Ferdinand Schoen for Nineteenth Ward Bank, New York,” then follow four lines of small type reading as follows: “ The undersigned requests the Nineteenth Ward Bank to open an account with the undersigned in form as here designated, and agrees that in case the account in any month shall average below One Hundred Dollars, that the Bank may that month charge undersigned’s account with Two Dollars, and that while the bank will exercise ordinary- care in relation to post-dated checks or stop orders, it shall not be held responsible by the undersigned if. such checks be paid.” Below that appear in large type the words “ Sign here ” succeeded by the authorized signature of the depositor with his address, business and date. I am inclined to believe that, prima facie at least, the fact that the depositor signed this card is evidence that he read the inscription preceding his signature. It would, therefore, on that assumption, have been the right of the defendant to have submitted to the jury the question whether the certification, under the circumstances, on one day, of a check dated the following day, was the exercise of ordinary care.

Lehman and Whitaker, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  