
    The Weedsport Bark, Appellant v. The Park Bank, Respondent.
    AVhen a draft upon a bank has been presented and paid, by transferring the same to the general credit of the payee, and the bank has paid out the amount upon his checks, and in the mean time has received from the payee otlier deposits of greater amount than the money paid on his checks, the draft will be deemed to have been paid.
    Notice from the drawer of the draft to the drawee not to pay the draft, served after the draft has been presented and paid as above, will not charge the drawee, though he has in his hands at the time a sufficient deposit of the payee to pay the draft.
    
      
      Appeal from Superior Court of New Yorh.
    
    Appeal from the decision of the Superior Court of the city of New York, affirming judgment in favor of the defendant by direction of Hon. Murray Hoffman, to whom the cause was referred.
    The action was for the recovery of $5,000, being the amount of two drafts made by the plaintiff on the Mercantile Bank in April, 1861, and delivered to the defendant with directions to apply the drafts or their proceeds to the payment of two notes of the firm of Cook, Evarts & Co. of Weedsport, payable at the Park Bank. It turned out that these notes had been protested and returned, and that, without the knowledge of the plaintiff, they had been paid in some other mode. The defendant accordingly placed the $5,000 collected on the drafts to the credit of the Weedsport Bank.
    On the 2d of May the plaintiff gave the following order, which was presented add complied with by the defendant on the 4th of May:
    “ Please deliver to C. W. Kellogg or order Cook, Evarts & Co.’s note, 23 April, paid $2,000; Cook, Evarts & Co.’s note, 23 April, paid $2,000; also, our draft on Mercantile Bank, 2,146, $2,000; our draft on Mercantile Bank, 2,168, $3,000. If the two drafts are to our credit, then deliver to Mr. Kellogg the cash, and oblige, &c.
    
      Indorsed: “Beceived two paid notes of $2,000 each.
    “ C. W. KELLOGG,
    “By W. H. Cole.
    “ $5,000 credited' to O. W. Kellogg.”
    The avails of the two drafts, amounting to $5,000, were passed to the credit of Kellogg on the defendant’s books, with his consent, upon the presentation of the order, and were drawn out by him by means of his checks or notes, payable at the Park Bank, and charged in its books with his assent, on or before the- 7th of May, 1861.
    
      On the 9th of May the plaintiff wrote the following letter, which was received by the defendant on the 11th “We sent you, on the 23d April, our draft, $2,000, and on 27th April, our draft, $3,000, to pay Cook, Evarts & Co.’s notes. The notes were protested and returned. I have drawn on you this day for the amount of the drafts, $5,000, in favor of E. J. Blake, Esq., which please hold, unless you have already paid the amount on our order to O. W. Kellogg.”
    At the time this letter was received, the $5,000 passed to Kellogg’s credit on the 4th of May had been drawn out by him, but he had a balance in his-favor on his subsequent deposits of over $6,000.'
    On the 15th of May the plaintiff wrote to the defendant as follows : “ Please inform me whether you have paid our draft for $5,000.” On the 17th the following reply was sent by the defendants: “ We gave credit, 4th inst., to O. W. Kellogg, $5,000, upon your order, of course.”
    Ko demand was made in any form by the plaintiff prior to the 11th day of May ; but it is admitted by the pleadings that a demand was made on or about the 18th of May.
    
      B. W. Huntington, for appellant.
    
      F. C. Barlow, for respondent.
   Porter, J.

The complaint was properly dismissed. The Park Bank was guilty of no breach of duty; nor was it indebted to the plaintiff at the time the suit was commenced. The proceeds of the drafts were properly placed to the credit of the Weedsporb Bank, aiid its direction to deliver the cash so credited, with the notes, to C. W. Kellogg or order, was sufficient evidence of his authority to receive payment from the defendant. It was so treated by the Park Bank, in passing the amount to his credit, and permitting him to draw it out on the faith of. the order. That it was so intended by the Weedsport Bank, is evident from the letter of provisional revocation, which directs the defendant to hold the $5,000 to meet a later draft in favor of Blake, “ unless you have already paid the amount on our order to O. W. Kellogg.” Even if the order were construed as calling.for a technical delivery of the money, the defendant fully complied with its terms, by the successive payments in cash made to the order of Kellogg prior to the letter of revocation. But the instrument was in terms negotiable, and it was properly regarded by the court below as, in substance and effect, a draft for the payment to C. W. Kellogg, or order, of the sum of $5,000, deposited in the Park Bank to the credit of the drawer. It was • duly honored by passing the amount to the credit of the payee, with his assent, on the books of the bank.

The judgment should be affirmed.

Smith, J. also read an opinion for affirmance. All the judges concurred except Moegah, J., who dissented.

Judgment affirmed.  