
    BRADFORD a. FOX.
    
      Supreme Court, First District; General Term,
    
    
      Feb., 1863.
    Acceptance of Debtor’s Check.—Action upon Original Demand.—Burden of Proof.
    Presenting a check at the hank to be certified, is not equivalent to demand of payment.
    A creditor who accepts his debtor’s check for the amount due, cannot recover upon his original demand, unless the check has been dishonored, without showing affirmatively that the debtor has sustained no damage by the failure to present the check. °
    Appeal from a judgment.
    This action was brought by George P. Bradford, M. Furman Hunt, John T. Clark, and Isaac P. Rogers, against Edward Fox, to recover $75, for goods sold. On the 30th of March, 1857, the plaintiffs left the account with an attorney for collection : on the 7th April defendant gave the attorney a check to the plaintiffs’ order for seventy-five dollars: on the 8th April the plaintiffs sent the check to the bank on which it was drawn, to be certified, but the paying teller declined to certify it. On the evening of the same day the summons in this action was served. At the trial, a clerk of the bank testified, that there were funds of defendant in the bank on the 7th, 8th, and 9th April, sufficient to meet the check. The cause was tried in 1857, before Mr. Justice Mitchell, without a jury. Judgment was rendered for the defendant, and the plaintiffs appealed.
    
      John F. Burrill, for the appellants.
    I. Even had it been agreed to receive the check in payment, it would not have amounted to a payment in law. (Cole a. Sackett, 1 Hill, 516; Gregory a. Thomas, 20 Wend., 17; Frisbie a. Larned, 21 Ib., 450 ; Noel a. Murray, 13 N. Y., 167 ; affirming S. C., 1 Duer, 385 ; Hill a. Beebe, 13 N. Y, 556 ; Hughes a. Wheeler, 8 
      Cow., 77; Cromwell a. Lovett, 1 Hall, 56.) The check was not an assignment or appropriation by the defendant, of any particular fund to or for the benefit of the plaintiffs, and the bank was not liable to the plaintiffs, until an acceptance or certification of it. (Dykers a. Leather Manufacturers’ Bank, 11 Paige, 612; Copperthwait a. Sheffield, 3 N. Y., 243; Winter a. Drury, 5 Ib., 525; Cromwell a. Lovett, 1 Hall, 56.) The bank refused to accept or certify it. If the defendant had any funds in the bank at the time, they were not affected by the check in question, and still remained to his credit, and were subsequently used by him; and to give to this transaction the effect of payment of the plaintiffs’ demand, will be an act of injustice. (Little a. Phoenix Bank, 2 Hill, 425 ; Kelley a. Mayor, &c., of Brooklyn, 4 Ib., 263-266; Murray a. Judah, 6 Cow., 484; Commercial Bank a. Hughes, 17 Wend., 94.)
    II. The decision.of the court below was erroneous for these reasons:—1. The evidence did not warrant the finding, that when the check was presented at the bank there were funds sufficient to pay it. The bank was the defendant’s agent, and its refusal to certify was prima-faeie evidence that there were no funds. Ho witness swore that there were funds at the time the check was presented. 2. The plaintiff was entitled to demand an acceptance or certification of the check. (Willets a. Phoenix Bank, 2 Duer, 121; Farmers’ Bank a. Butchers & Drovers’ Bank, 14 N. Y., 634; 16 Ib., 125; Luff a. Pope, 5 Hill, 413.) 3. What took place between the clerk and the bank teller was, as between the holder and the drawer of the check, a sufficient presentment of the check for payment. 4. The bank clerk, representing there were no funds in the bank, excused the plaintiff from going through the idle ceremony of a demand. . (Franklin a. Vandérpool, 1 Hall, 78 ; Commercial Bank a. Hughes, 17 Wend., 94; Kelley a. Mayor, &c., of Brooklyn, 4 Hill, 263.)
    III. The tender of the check at the time of trial was sufficient. (Hughes a. Wheeler, 8 Cow., 77 ; Burdick a. Green, 15 Johns., 247; Nichols a. Michael, 23 N. Y., 264.)
    
      Henry M. McQuoid, for the respondent.
    I. The judge has found, as matter of fact, that the plaintiffs took the check in payment. This conclusion will not be disturbed, except it be held the result of passion, prejudice, or grave error. (Woodin a. Foster, 16 Barb., 146; Johnson a. Weed, 9 Johns., 310 ; Witherby a. Mann, 11 Ib., 518.)
    II. As matter of law, the plaintiffs’ demand was paid by thé check. The neglect of the bank to certify was a mere omission of a courtesy. Payment of the check was never asked or requested. The check was in law a bill of exchange. (Harker a. Anderson, 21 Wend., 372; Little a. Phoenix Bank, 2 Hill, 425; 7 Ib., 359; Chapman a. White, 6 N. Y., 412.) 1. Receiving the check was at least a suspension of the plaintiffs’ remedy upon the original cause of action until presentment and notice of dishonor. (Stedman a. Gooch, 1 Esp., 3; Cropper a. Powell, Anthonis N. P., 68; Sieckman a. Allen, 3 E. D. Smith, 561.) 2. The plaintiffs must show affirmatively that no damage to the defendant could have arisen from the non-presentment of the check. (Dénnis a. Morice, 3 Esp., 157; Orr a. McGuinness, 7 East, 361; Robinson a. Ames, 20 Johns., 146.)
   Ingraham, J.

The plaintiffs sold defendant a bill of goods, for which they received defendant’s check, and gave a receipt on the bill. The check was sent to the bank with a request to certify the check, which was refused and the check returned. No demand of payment was made. On the return of the check, notice was given to the defendant, and the present action brought on the original cause of action. Upon the trial, the plaintiffs produced the check and offered to cancel it. The court held that payment of the check should have been demanded, and rendered,—-judgment for defendant. The plaintiffs appeal from this judgment.

There can he no doubt that merely receiving the chock was no payment of the original indebtedness, if it was not paid, unless specially agreed to be received as such payment; and if payment had been demanded and refused, there can be no doubt of the right of the plaintiffs to resort to the original cause of action, and surrender the check upon the trial. (Taylor a. Allen, 36 Barb., 214.)

The only questions, therefore, that arise in this case are, 1, whether presenting the check to be certified is equivalent to a demand of payment; and 2, if it is not, whether a creditor who has received a check may return .such check to the party, and sue on the original cause of action without making such demand. Presenting a check to be certified is not demanding payment. The bank was under no obligation to certify the check or to accept it. The instrument did not require acceptance, but payment; and the duty of the holder was not discharged until he demanded payment. This he could not do in this case, because the check was payable to the order of the plaintiffs, and was not indorsed by them.

A request to the bank to do to the check something which they were under no obligation to the holder or drawer to do, can never be considered equivalent to a demand for payment, which under the duty they owed to the drawer they were bound to make, if he had funds in the bank. Por a refusal to pay under such circumstances, the drawer would have a right of action against the bank, but not for a refusal to certify. Were the plaintiffs, then, under any obligation to present the check to the bank ? It was not received in payment. They held the check, as agents of the defendant, to draw the money from the bank and apply it to the payment of his indebtedness to them. That indebtedness was not discharged until the check was paid. (Cromwell a. Lovett, 1 Hall, 56.) Oakley, J., says, “ If they (the holders) were not guilty of any negligence in the transaction, whereby the defendant has sustained an injury, they may return or cancel the check and sue upon the original consideration.”

The check is drawn upon moneys in the bank belonging to the defendant. If not paid, the money still remains in the bank, the property of the defendant. He can at any time control it, and has sustained no loss by its remaining to his credit, unless the bank upon which it was drawn have failed. In the present case, no proof was furnished by either party as to the consequences of such neglect to demand payment.

The burden of showing that no injury had accrued from the neglect to demand payment rested upon the holder, before he could return the check at the trial, and recover for the original indebtedness. This was held in Little a. Phoenix Bank (2 Hill, 425), and affirmed in the Court of Errors (7 Hill, 359); viz.: that delay to present the check would not have the effect to discharge the drawer, if he had not suffered loss as a consequence; this, however, to he shown by the holder in the first instance.

The same rule should be applied to this case. The plaintiffs received a check from the defendant for the bill of goods, which they should have presented for payment; not having done so, they must show that no injury resulted to the defendant from such neglect, before they can sue on the original indebtedness and cancel the check upon the trial.

As the plaintiffs have not brought themselves within this rule, the judgment appealed from was correct and should be affirmed.

Sutherland, P. J.

I concur in the conclusion to which Judge Ingraham has arrived. The judgment should be affirmed.

Clerks, J.

A creditor, who receives a check from his debtor, receives it in payment of his demand, or does not receive it in payment of his demand. If he receives it expressly in payment of his demand, he can look alone to the check, and in his action must prove all that the law requires, such as demand of payment, &c., to entitle him to a recovery on the check. The burden of proving demand and non-payment, &c., devolves on him. But where the check is not received in payment of the demand, but as a method convenient to both parties for making payment, the creditor can return the check at any time, and resort to his action on the original demand; and having this right, he is under no obligation, in the first instance, of proving presentation for payment, or any of those preliminaries which are necessary to entitle him to a recovery on the check alone. To be sure, he is liable for any damage which has accrued in consequence of his neglect in not presenting the check for payment at the bank. But the burden of proof, in the action on the original demand, devolves upon the defendant. The case in 2 and 7 Hill, referred to by Judge Ingraham, was an action on the bill. On this the plaintiff relies for a recovery, and of course the burden of proof was on him to show that the defendant had sustained no damage by the delay in not presenting it for payment in due time.

In this case, I think, it was the duty of the defendant to show that he was damnified hy the plaintiffs’ omission to present the check for payment at the bank; and that it was not necessary for the plaintiffs to prove that they had demanded payment of it.

I am in favor of reversal.

Judgment affirmed.  