
    Herman F. Sieling, Appellant, v. Jacob E. Clark, Respondent.
    (Supreme Court, Appellate Term,
    November, 1896.)
    1, Eráud — Drawing checks without funds to meet them.
    One who draws a check on a bank where he has no funds to meet it is guilty of a fraud' on the person who parts With" money on the faith ' thereof.
    2, Same — Withdrawal of deposit.
    If the drawer of a check withdraws funds which he had in. the drawee’s Hands when he drew the check, and thereby defeats its payment, he commits a fraud on the holder. ..."
    3, Trial — Charge.
    In an action involving a question of fraud, it is reversible error for the court, after calling the attention of the jury to the fact that the case was one in which the defendant could be committed to jail if. he did not pay the judgment, to express his opinion that the Case was a “ very thin ” one, as. such remark would tend to influence the jury.
    Appeal by plaintiff from judgment of the' Ninth District Court.
    W. E. Benjamin, for appellant.
    D. M. Van Cott, for respondent.
   McAdam, J.

The action was to- recover $150 obtained by the defendant from the. plaintiff on three checks of the defendant for $50 each, which- the plaintiff cashed for him. The checks were drawn by the defendant, signed J. E. Clark, trustee,” to the order of “ J. E. Clark,” upon the Merchants’ Exchange National Bank, and were dated respectively May 18, 15 and 16, 1895, and indorsed by the defendant to the plaintiff..

The action, was in form for deceit, upon the ground that on the morning of May 13, 1895, when the plaintiff cashed the first check of $50, the defendant had not a dollar in the bank to meet it; on the contrary, his account was overdrawn $4.95; on the morning of the l5th, when the defendant got the second check cashed, instead of having $100 in the bank to meet the two checks, he had but $57.11 there; on the morning of the 16th, when he got the third check cashed, he had but $40.11 in the bank; and on the following morning had but $18.36 to his credit therein. The defendant claims that he deposited $569 on May 17, but checks were immediately drawn against it, and the money drawn out before the plaintiff’s checks were presented. Other deposits were made by the defendant, but his daily balances were exceeding small.

The plaintiff deposited the checks in the Hamilton Bank, where he kept his account, and they came back marked “ N. G.” He called upon the defendant, who said there must be some mistake "in his account, and to again present them. They were again presented, and came back with the same mark. When called upon subsequently for an explanation, the defendant said he was in trouble and would make the checks good.

Persons who obtain property on bank checks, representing them to be good, when they knew they were not, have been convicted (Smith v. People, 47 N. Y. 303; Foote v. People, 17 Hun, 218; Lesser v. People, 73 N. Y. 78), and the Penal Code contains stringent provisions on the subject of false tokens. §§ 529, 569.

Even when no oral representation is made, the act of drawing and issuing a check amounts to a representation that the drawer keeps an account with the drawee and that there are funds on deposit to meet it. Daniel on Neg. Inst., §§ 1597, 1629. The drawing of a bank cheek presupposes the existence of a fund on deposit over which the drawer has a disposing power. Morrison v. Bailey, 5 Ohio St. 16; Espy v. Bank, 18 Wall. 620. It is only where there is an actual deposit that a drawer has a right to expect that his drafts will be honored.

“ The giving of a bank check is universally understood in com-* mercial circles as an affirmation that there are funds on deposit to meet it, and the payee receives it on that understanding. But if in fact the check is drawn on a bank where the drawer had no funds, and without any reasonable expectations on his part that it will be paid, the fraud is manifest.” Cooley’s Torts (2d ed.), 560; see also Merchants’ Bk. v. State Bk., 10 Wall. 647; Bull v. Bank, 123 U. S. 111. The drawer is hound to know the state of his account with his bank, and if he withdraws funds which he had in the drawee’s hands when he drew the check, and thereby defeats its payment, he commits a fraud on the holder. Daniel on Neg. Inst. 1081, 1596. The drawing of checks without funds to meet them is, when unexplained, a badge of fraud. Greenleaf v. Mumford, 19 Abb. Pr. 469; S. C., 30 How. Pr. 30.

In Brown v. Montgomery, 20 N. Y. 287, the court held that: When a business toan in a commercial town fails to meet his paper, payable at a bank, and especially his checks upon the bank at which he keeps his account, the natural inference which one draws is, that he is no.longer able to pay his debts. Such a circumstance may occur from oversight or accident, ' but those are exceptional cases. The failure to meet the paper is itself a suspension of payment, and notice of the fact, unaccompanied with any explanation which would give it a different character, is notice of the commercial failure of the party.” See also Booth v. Powers, 56 N. Y. 32.

A person advancing to another the full face value of a check has the undoubted right to expect that the draft represents the equivalent of the money advanced upon it and will procure that amount" on presentation. If the. one inducing the advance knows that such result cannot follow, and the person who has parted with his money is deceived, to his injury, is it not a deceit for which the one at fault is answerable? We think it is. The rule is that every one must be presumed to have intended the natural and probable consequences of his acts, and when his acts are voluntary, and necessarily operate to defraud others, he must be deemed to have intended the fraud. Coursey v. Morton, 132 N. Y. 556.

. The acts of the defendant, as proved, made out á prima facie case of fraud, and it became his duty to furnish some explanation which would give them a different character. r

Whether the facts-that the defendant actually kept an account with the bank on which the checks were drawn, and that he kept on depositing money and drawing against it, furnished reasonable expectations that the checks would be paid on presentation — this, supported by any explanation the" defendant had to offer in justification, was a question exclusively for the determination of the jury upon the evidence adduced as to fraudulent intent.

The justice in his charge, among other things, said: “Although T did not intend to express any opinion, I think it is a very thin case, and I hesitated in submitting the case to you.” To the last portion- of this charge the plaintiff' excepted. The justice had previously instructed the jury that the case differed from the ordinary action of debt,‘because the defendant could be committed to jail if he did not pay the judgment. With this admonition in mind, the charge that it was a “ very thin ” case was calculated to leave- the jury to find for the defendant, and they did so.

The definitions of the word “ thin ” (ignoring the adverb “very”), as given by Webster, show the charge to bjs objectionable; these are some of them: Slim, small, slender, slight, flimsy. The case presented by the plaintiff does not permit of any such criticism.

Though a judge in charging the jury may express an opinion so long as he does not instruct them to find in accordance with such opinion, and fairly submits to them the facts (Baylies’ Tr. Pr. 236), yet, as was justly said in Sindram v. People, 88 N. Y. 202: “It is desirable that the court should refrain, as far as possible, from saying anything to the jury which may influence them either way in passing upon controverted questions of fact, and perhaps comments on the evidence might be carried so far as to afford ground for assigning error.” And in Hoffman v. Railroad Co., 87 N. Y. 32, the court said: “In view of the just regard which is paid by jurors to the opinions of the judge, it is doubtless proper that in a case of conflicting evidence, he should use great caution in expressing his opinion.”

Hpon the entire case, the jury were to weigh the evidence, to the end that they might fairly determine whether the defendant did the acts complained of with a fraudulent or an honest intent, and in view of the issue and the character of the proofs we think the charge of the justice may have had an effect upon the jury prejudicial to the plaintiff. It could hardly be otherwise.

For this reason the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Halt, P. J., and .Bischoff, T., concur.

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