
    Louis Jacobson, Doing Business Under the Name of Louis Jacobson & Bros., Appellant, v. First National City Bank, Respondent.
   Order, entered July 18, 1967, unanimously modified, on the law, to deny defendant’s motion for summary judgment as to the first cause of action set forth in plaintiff’s complaint, dismissal of plaintiff’s complaint as to such cause of action vacated, and order otherwise affirmed, without costs and disbursements. There is a triable issue of fact as to whether the check described in the first cause of action was dishonored or returned within the period ending at midnight of the bank’s business day next following the day of receipt of the check for deposit (see former Negotiable Instruments Law, § 350-b; Uniform Commercial Code, § 4-301). Furthermore, the present record does not justify a determination as a matter of law that the defendant bank should be relieved from such liability as it may have incurred as acceptor or otherwise by reason of the alleged failure to timely dishonor and return the check. Concur — Botein, P. J., Eager, Capozzoli, MeGivern and Bastow, JJ.  