
    Max Well, Respondent, v. The Corn Exchange Bank, Appellant.
    (Supreme Court, Appellate Term,
    May, 1909.)
    Negotiable instruments — Waiver of fixing of liability and new promise after discharge — Proof of waiver.
    Where a bank, in which an indorsed check had been deposited by the indorser, failed to give him due notice of dishonor, the indorser, by giving his check to take up the dishonored check and receiving it, waived the giving of notice of dishonor under section 180 of the Negotiable Instruments Law and cannot thereafter maintain an action against the bank for negligence in failing to notify the prior parties of the dishonor of the check, Lehman, J., dissented.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, first district, borough of Manhattan.
    Bowers & Sands (David G. George, of counsel), for appellant.
    Moses R. Ryttenberg (I. Balch Louis, of counsel), for respondent.
   Seabury, J.

This action is brought to recover damages alleged to have been caused by the defendant’s failure to give due notice of dishonor of a check deposited by the plaintiff with the defendant. The facts are undisputed.

On August 10, 1908, the plaintiff deposited with the defendant a check drawn by the firm of Staffer & Pisnoff, to the order of one Rosenberg. Rosenberg indorsed and delivered the check to the plaintiff, for value, who indorsed it and deposited it with the defendant. The check was duly presented by the defendant but was returned, marked “ account closed.” Hotice of dishonor was not given to the plaintiff until August twenty-fourth. Upon receiving notice of dishonor, the plaintiff gave his check to the defendant and received in return the dishonored check. When the plaintiff gave his check to the defendant and received in return therefor the dishonored check, he had full knowledge of all of the facts stated above. He, therefore, waived notice of dishonor. Heg. Inst. Law, § 180.

The plaintiff, with full knowledge of the facts which relieved him from liability as indorser and which charged the bank with negligence by reason of its failure to give the indorser due notice of dishonor, having paid the dishonored check, thereby acknowledged his continued liability and established a waiver of the bank’s laches in failing to give him due notice of dishonor.' After this waiver on the part of the plaintiff, he stood in the same position as if proper steps had been taken to charge him. Ross v. Hurd, 71 N. Y. 14.

In Ross v. Hurd, supra, Judge Andrews said: “It has been frequently held that a promise by the indorser to pay the note or bill, after he has been discharged by the failure to protest it, will bind the indorser, provided he had full knowledge of the laches when the promise was made. A promise, made under these circumstances, affords the clearest evidence that the indorser does not intend to take advantage of the laches of the holder; and the law, without any new consideration moving between the parties, gives effect to the promise.”

The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.

Gildersleeve, J., concurs.

Lehman, J. (dissenting).

The defendant herein received a check from the plaintiff and thereupon, with the plaintiff’s consent, credited the plaintiff’s account with the amount of the check before collection, and thereby became a purchaser of the check and not a holder for collection only. Metropolitan National Bank v. Loyd, 90 N. Y. 530. The bank, however, still owed the plaintiff the duty to collect the check or to return it to the plaintiff with his rights against ¿he parties to the check unimpaired. In this respect, its duties are the same as if it had taken the check only for collection. Martin v. Home Bank, 160 N. Y. 190. Payment of this check was refused, and the bank failed to give the plaintiff prompt notice of dishonor, but informed him, some days thereafter, that he could have the check only by giving a new check for the same amount.

The plaintiff protested that his account was ample to cover this check, but, when informed that the hank’s rules required its clients to give a new check before receiving the old check, he complied with the alleged rules. I do not think that this was a waiver of the neglect of the bank that could bar the plaintiff’s right of action. Section 180 of the negotiable Instruments Law provides that notice of dishonor may be. waived, even after the omission to give due notice, and the waiver may be implied. It appears to me that this section was meant to cover all cases where the notice of dishonor was a condition precedent to a recovery, but not a case where the failure to give notice of dishonor has become the basis of an affirmative right of action for neglect. In such a case, the waiver of the neglect would amount to a release of a cause of action already complete; and I think no acts can have such a result, unless they constitute an accord and satisfaction. If the bank, as a purchaser of the check, were attempting to hold the plaintiff as a prior party, then the bank might, perhaps, claim that its failure to give notice of dishonor could be waived, as the prompt notice would then be simply a condition precedent to a recovery upon its part which, like other conditions, may properly be waived; but the plaintiff here is suing to recover for the neglect of the bank, a neglect which he had not waived before its commission and had not released after its commission. It is true that, if the act of the plaintiff did amount to a waiver of the notice of dishonor, even as a condition precedent to a recovery by the defendant, the plaintiff should not be allowed to recover here; because the defendant would then have a right of action against the plaintiff as a prior holder, and there would be simply a circuity of action.

Such a waiver must be clearly established and will not be inferred from doubtful or equivocal acts or language. Ross v. Hurd, 71 N. Y. 14, 18. In this case, it appears to me that the acts and language of the plaintiff showed only an intention to wipe out the previous credit by the bank of the amount of the check to his account. They should be given no other force, and the plaintiff should be allowed to recover damages for the uncontradicted neglect of the defendant.

The judgment should be affirmed, with costs.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  