
    Charles Schneider and others v. The Irving Bank.
    Where a Bank was notified by the drawer of a check not to pay it, and the paying-celier promised not to do so, but afterwards paid it to the holder on presentation,—Held, that the drawer might recover from, the Bank the amount of the check so paid.
    Entries in. r. depositor’s bank-book do not constitute an account stated between the depositor and the Bank, where the former, within a reason-able time after the book is balanced, makes objections thereto,
    Appeal by the defendant from s judgment of the Eighth District Court.
    The fiicts are fully staled in the opinion of the Court,
    
      
      E. R. Bogardus, for appellant.
    
      A. A. Phillips, for respondents.
   By the Court.

Cardozo, J.

On the llth of July, 1863, the plaintiffs, who kept an account with the defendant, drew a check upon it for two hundred and sixteen dollars and seventy-one cents, and • delivered it to the Central Express Company. About ten minutes after the check was issued one of the plaintiffs gave notice to the defendant that they, the plaintiffs, had a defence to it, and the Bank must not pay it. The teller, upon receiving the notice, stated that the check had not yet been presented, and promised not to pay it. Notwithstanding this notice and promise, the defendant did pay the check. There is some conflict as to the subsequent transactions between the Bank and the plaintiffs, but in support of the judgment I think we must hold that the Justice found that the plaintiffs knew nothing about the payment of the check. until their Bank-book was written up about a month afterwards, and that when the check, with their other vouchers, was thus returned to them, the plaintiffs called upon the Bank about it. I do not think we can say that this amounted to an account settled between the parties.

Neither party states what was said in that interview ; hut as the plaintiffs called upon the defendant as soon as the cheek was returned to them, and that was followed by this suit at no very considerable period afterwards, I do not think it can be said that the plaintiffs acquiesced in the account, as stated by the defendant, on counting up or balancing the plaintiffs’ book.

The only question, then, presented in this case is whether the defendant, after receiving notice and promising not to pay the check, had the right to pay it and charge the amount as a payment to the account of the plaintiff; and I am clearly of opinion that it had not. / The check was but an order on the defendant, which it had not accepted, and upon which therefore it was not liable. It was perfectly competent, therefore, for the plaintiffs to revoke the authority which they had given to the Bank to apply their funds to the payment of the check... The Bank had not accepted or promised to pay the check, and. therefore owed no duty in the premises except to the plaintiffs.

If it be conceded that the-Bank, by this unauthorized payment, acquired whatever cause of action existed against the plaintiffs in favor of the payees of the check, yet this judgment should not be disturbed. The Bank did not set up any counterclaims against the plaintiffs, but tried the case simply upon the question of their right to pay this check. Had a counter-claim been interposed, the plaintiffs might have gone into evidence to show that they had a defence to the claim in payment of which they had issued this check, as they stated to the teller of the Bank. As the Bank can yet sue the plaintiffs, if it thinks it has acquired a cause of action by becoming possessed of the check, it will not be prejudiced by the affirmance of this judgment, which, upon the testimony and the course of the trial below, is correct. The objection that the check was not tendered to the Bank was not taken below, and cannot be relied on here; but if the Bank wish it, the check must be taken from the files, and delivered up to it.

I think the judgment should be affirmed.  