
    Patrick Coyle v. George J. Smith.
    Where, in a suit upon a hank check, it was proved that the drawer had not sufficient funds in the bank to pay the check at the time it was drawn, nor at any period subsequently, except that on one occasion, several days after the check was drawn, he deposited a considerable sum, and drew it out within a few hours; it being shown, also, that the bank would not have paid the check when not possessed of funds of the drawer to meet it; held, that evidence of demand and notice was unnecessary.
    Appeal from the marine court, where the plaintiff obtained judgment against the drawer of a hank check. An officer in the hank testified, that the defendant had but a few dollars therein at the date of the cheek, or at any time before the trial, except that a deposit was once made by him, but suffered to remain less than a day. It was also said by the bank officer, that the defendant would not have been allowed to overdraw Ms account. The plaintiff relied upon these facts, without showing a presentment at the bank and demand of payment before suit.
    
      Elias J. Beach, for the appellant.
    H. V. Vultee, for the respondent.
   By the Court. Ingraham, First J.

Where a man draws a check on a bank, he is presumed to have funds in the bank to meet it, and he is not liable upon the check until it is presented for payment. But such presentment is in some cases unnecessary. Where the drawer, with knowledge that it has not been presented, promises subsequently to pay it, and where the drawer fraudulently withdraws the funds intended for payment of the check; then proof of demand and notice is unnecessary. (1 Hall, 68, 81 ; 1 T. R. 405.)

So when the drawer had no funds in the hand of the drawee, and has not sustained damage from want of presentment. (10 Wend. 306.)

The latter rule applies to this case. The evidence shows that there were no funds in the bank at the time the check was payable, nor since, except upon one occasion, when a deposit was made, and withdrawn almost immediately, and that this check would not have been paid without funds. This evidence was sufficient to dispense with a demand and notice. It is apparent that the defendant has sustained no damage ; that he has made no provision to pay his check; that the bank would not have paid when presented; and his subsequent conduct in withdrawing all the money he deposited, shows he did not intend to pay through the bank, or to leave funds for that purpose. (Murray v. Judah, 6 Cow. 490 ; Mohawk R. R. v. Bradish, 10 Wend. 306 ; 13 Wend. 133 ; Gough v. Steats, 13 Wend. 552 ; Harker v. Anderson, 21 Wend. 372, &c.)

The judgment should be affirmed.  