
    The Sulsberger & Sons Company of America, Respondent, v. Edgar L. Cramer, Appellant.
    Third Department,
    November 10, 1915.
    Bills and notes — delay of payee in presenting check for payment — failure of bank on which check is drawn — when payee must bear loss.
    Where the defendant, in payment for merchandise purchased, gave his check drawn upon a local bank to the seller’s agent, payable to the order of*the seller, which had its place of business in another town, and the seller did not put the cheek in its own bank for collection until five days thereafter, so that it did not reach the bank upon which it was drawn until nine days after its inception, there was such a delay on the part of the payee that it should bear the loss caused by the fact that the bank ceased doing business and made an assignment for the benefit of creditors on the day before the check was presented for payment, if during the period of delay the maker had sufficient funds to pay the check had it been duly presented.
    Appeal by the defendant, Edgar L. Cramer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schuyler on the 11th day of May, 1915, upon the decision of the court after a trial before the court without a jury.
    The judgment was for the value of meat sold and delivered to the defendant.
    
      Lewis H. Watkins, for the appellant.
    
      George M. Velie [T. B. & L. M. Merchant of counsel], for the respondent.
   Kellogg, J.:

The plaintiff’s place of business for the country under consideration is Binghamton. Each week it would send to Elmira a carload of meat, and its salesman on Wednesday and Thursday of each week would be there, and the retail dealers from the surrounding country would come to the car and purchase meat. The defendant lived at Montour Falls, and had purchased meats of the plaintiff at Elmira at various times during the preceding two years.

On Wednesday, October 29,1913, about two-thirty p. M., the defendant gave to the plaintiff’s agent at Elmira his check upon a bank at Montour Falls for the amount due the plaintiff for meats sold and received the receipted bill therefor. The check was payable to the order of the plaintiff. The agent had no authority to indorse the check. The agent retained the check, carrying it with him to Binghamton Friday night, and on Saturday morning he gave it to the cashier at the plaintiff’s office in Binghamton. The bank account having been made up for the day, the check was not put in the bank at Binghamton in course of collection until the following Monday, November third. Tuesday, the day following, was a bank holiday. The Binghamton bank sent the check through the New York State National Bank at Albany in the ordinary course of business and it was presented to the Montour Falls bank for payment November seventh, that bank having ceased to do business at the close of business hours on November sixth and made an assignment for the benefit of creditors. At all times the defendant had in the bank money sufficient to pay the check if it had been presented. The question is whether the plaintiff presented the check for payment within a reasonable time after its issue. It is contended by the defendant that the plaintiff was negligent in presenting the check and that the failure of the bank brings the loss upon the plaintiff and not upon him.

e

By section 322 of the Negotiable Instruments Law “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.”

Section 4 of the same law provides: In determining what is a reasonable time ’ or an ‘unreasonable time ’ regard is to be had to the nature of the instrument, the usage of trade or business (if any) with respect to such instruments, and the facts of the particular case.”

Ordinarily between drawer and drawee, where a check is payable in the same town in which it is given, it should be presented the day of its receipt or the next day. (Dehoust v. Lewis, 128 App. Div. 131; Smith v. Miller, 43 N. Y. 171; Syracuse, Binghamton & New York R. R. Co. v. Collins, 57 id. 641.)

By delivering to the plaintiff’s agent at Elmira a check payable to the plaintiff’s order at a different place, it must have been within the contemplation of the parties that the check, before presentment for payment, would go through the plaintiff’s Binghamton office. The agent was at Elmira Wednesdays and Thursdays of each week. It must have been the intention that the check would either be mailed to the Binghamton office or would be taken to the office by the agent upon his return Thursday night or Friday morning. The check was not put in course of collection until Monday morning, November third. If the check had been mailed from Elmira to Binghamton by the plaintiff’s representative, or if it had been delivered to the plaintiff’s cashier at Binghamton on or before Friday morning, it undoubtedly would have been paid. It is also evident that if the cashier had put the check in the bank Saturday it would have been paid. The mere fact that his bank account had been made up furnished no good reason why the check should not have been put in course of collection. That delay was in itself sufficient to bring about the non-payment of the check. We conclude that the check was not presented for payment within a reasonable time and that the plaintiff was negligent in presenting the check and should, therefore, bear the loss caused by the delay.

On November third the defendant had given to the plaintiff another check upon the Montour bank for a later purchase. This check went to protest. Both checks, after protest, were delivered to the defend'ant. He paid the later check, but refused to pay the former. The defendant presented a claim to the assignee of the bank for both checks and received only a dividend of ten per cent for which the defendant acknowledged liability upon the trial.

The judgment should be reversed upon the law and the facts, with costs, and judgment directed for the plaintiff for fourteen dollars and fifty-one cents, the amount received by the defendant from the assignee, with costs to the defendant.

All concurred.

Judgment reversed on law and facts, with costs, and judgment directed for plaintiff for fourteen dollars and fifty-one cents, the amount received by the defendant from the assignee, with costs to the defendant. The court disapproved of the seventh and eighth findings of fact, and found that the check was not presented for payment by the plaintiff within, a reasonable time after its issue, and that the non-payment of the check was due solely to the negligence of the plaintiff in not presenting the same for payment in due time and that the loss sustained by the delay was the amount of the check.  