
    Andrew J. McIntosh et al., Resp’ts, v. Waldo H. Tyler,. App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1888.)
    
    1. Bills and notes—Commercial paper— Checks—Payment of—What DOES NOT AMOUNT TO.
    The defendant being indebted to the plaintiffs mailed them his check drawn payable to their order for the amount of the debt. This after passing through several hands, was presented to the bankers on whom it was drawn and by them marked paid and charged to the defendant’s account. Subsequently the drawees made a general assignment without having paid the check. This action was brought on the check. Held, that the fact that the check was delivered to the drawee, and by it charged to the drawer’s account and marked paid, did not discharge the drawee.
    3. Same—Checks—Actions on—What does not constitute defense.
    The fact that a check mailed by the holder to the drawee for payment is not paid, when it would have been had it been presented at the drawee’s counter, is not a defense in favor of the drawer, though by the transaction the drawer lost his deposit.
    This is an appeal from a. judgment of the county court, affirming on appeal a judgment of a justice’s court.
    
      The defendant being indebted to the plaintiff, on December 14, 1884, drew his check for the amount of the debt, payable to their order, on a firm of bankers with whom he had a deposit sufficient for its payment. The plaintiff received the check through the mail and deposited it for collection. After being transmitted through several hands it was presented to the drawee, and the defendant’s account being good, the check was charged thereto, marked as paid and cancelled. The drawees made a general assignment and stopped payment. The check was returned by them, the mark of payment being erased. This action was brought on the check by the payee to recover of the maker.
    
      Graham & Lane, for app’lt; J. B. Holmes, for resp’t.
   Follett J.

Construed by the custom of bankers, the transaction between the Wilber National Bank and P. H. Mitchell & Co., amounted to a direction by the former to the latter to this effect: For the inclosed check mail your draft on New York, or return the check. The drawee failed to send the draft, or to pay the check in any other way, and before doing so it was not authorized to mark the check paid, or to charge it to the drawer’s account. The fact that the check was delivered to the drawee, and by it charged to the drawer’s account and marked paid, did not discharge the drawer. Turner v. The Bank of Fox Lake, 4 Abb. Ct. App. Dec., 434; S. C., 3 Keyes, 425, and 2 Trans App., 344; Burkhalter v. The Second National Bank, 42 N. Y., 538; Kelty v. Second National Bank, 52 Barb., 328.

The fact that a check mailed by the holder to the drawee for payment is not paid, when it would have been had it been presented at the payee’s counter, is not, it seems, in this state, a defense in favor of the drawer, though by the transaction the drawer lost his deposit (Indig v. The National City Bank, 80 N. Y., 100; Briggs v. Central National Bank, 89 id., 182), though it has been held otherwise. Farwell v. Curtis, 7 Bissell, 160; Drovers' Bank v. Anglo-American Packing Company, 18 I11. App., 191.

The judgment of the county court is affirmed, with costs.

Hardin, P. J., and Martin, J., concur.  