
    (69 Hun, 202.)
    BROOKE v. TRADESMEN’S NAT. BANK.
    (Supreme Court, General Term, First Department.
    May 12, 1893.)
    Damases—Proximate Cause—Liability of Bank.
    Where a bank refuses to pay the note of a depositor payable at the bank, though he has sufficient funds on deposit for that purpose, the bank is liable to him for any damage he may sustain which could fairly and reasonably be considered as naturally arising from the failure to pay the note; but the immediate entry of a judgment for many times the amount of the note, under an agreement of which the bank had no notice, and the seizure of the depositor’s business by the sheriff, could not, in the natural order of things, be expected to result from such failure.
    Exceptions from circuit court, New York county.
    Action originally brought by Egbert H. Gran din, as receiver of the property of William C. Rogers, a judgment debtor, against the Tradesmen’s national Bank to recover damages for failure to pay note of judgment debtor. Egbert H. Grandin died pending the action, and it was continued in the name of Charles L. Brooke, as receiver. On the trial defendant moved to dismiss the complaint, for the reason that it did not state facts sufficient to constitute a cause of action. The motion was granted, plaintiff excepted, and his exception was ordered to be heard in the first instance at the general term. Exception overruled.
    The cause was heretofore stricken from the calendar of the general term because no case or bill of exceptions had been made or settled. 22 H. Y. Supp. 633. The defect in the papers was subsequently cured by the insertion of a bill of exceptiohs, and the cause was again placed on the calendar of the general term.
    Argued before YAH BRTJHT, P. J., and O’BRIEH and IHGRAHAM, JJ.
    Leavitt & Leavitt, (E. R. Leavitt and Charles W. Brooke, of counsel,) for plaintiff.
    Stern & Rushmore and Joel S. Mason, (C. E. Rushmore, of counsel,) for defendant.
   YAH BRTJHT, P. J.

This action is brought by the plaintiff, as receiver of one William C. Rogers, a judgment debtor, to recover damages sustained by said Rogers because of the failure of the defendant to pay a note of said Rogers which had been made payable at the defendant’s bank, the said Rogers having at the time of such refusal on deposit with the defendant more than sufficient money to pay said note. The plaintiff does not claim to recover as such damages the amount of the deposit, but certain special damages arising from the fact that, in consequence of the failure of the bank to pay the note in question, certain creditors of Eogers had the right to enter judgment for some $8,000 immediately, and issue execution thereon, which they did, under which execution the sheriff levied upon the stock and fixtures of said Eogers at his store, and remained in possession thereof for a period of about three weeks, by reason whereof it is claimed that said Eogers was unable to attend to his business, and did not attend to the same, and said business was thereby ruined, and the credit of Eogers lost, and said Eogers was forced thereby to and did give up business, and that the value of said business was the sum of $50,000, for which sum judgment was demanded. Upon the case coming on for trial the counsel for the defendant moved to dismiss the complaint upon the ground that the complaint did not state facts sufficient to constitute a cause of action, in that it disclosed a cause of action which could not be maintained by the plaintiff as receiver of the property of the judgment debtor, and set forth a cause for damage for tort, and is one to which such receiver could not succeed, but was personal to the judgment debtor, being not transferable in its nature. The court dismissed the complaint, and the plaintiff duly excepted, and this is the exception which was ordered to be heard in the first instance at the general term.

This case having been before the court upon a previous occasion, and argued, but not decided, because of defects in the papers, the question arose as to whether the plaintiff could maintain this action in any event, without more specific allegations showing some duty upon the part of defendant to pay the note in question other than that disclosed by the complaint; and in the points submitted upon this argument the counsel have addressed themselves somewhat to this point. But it seems to us that this question cannot be considered upon this motion, for the reason that no such ground was stated upon the dismissal of the complaint; and, it being a ground which might have been avoided by amendment, which, if objection had been taken, the court might have allowed upon proper terms, it cannot be made available here. The plaintiff disclaims that the action is an action ex delicto, but that, on the contrary, it is simply an action for damages for the breach of a contract, and although it is alleged in the complaint that the bank wrongfully, negligently, and unjustly refused to pay the note, and that by reason thereof said Eogers suffered special damages, the use of these terms does not turn the complaint setting forth a contract and a breach thereof into an action sounding in tort. Treating, therefore, the complaint as it is interpreted by the counsel for the plaintiff, can the special damages alleged be recovered against the defendant? There seems to be no dispute between the parties but that the relation existing between a bank and its depositor is that of debtor and creditor, and that the law implies a contract upon the part of the bank to disburse money standing to the depositor’s credit only upon his order, and in conformity with his directions. It is undoubtedly the rule that the refusal to pay a check upon presentation gives the drawer a right of action in case he has funds in the bank to meet the check, and the refusal to pay was without authority, and that the measure of damages will be the amount of actual loss the party has sustained, and that damages which may fairly and reasonably be considered as naturally arising from the breach of contract according to the usual course of things are always recoverable. In applying this rule to the case at bar, how can it be claimed that, because the bank neglected to pay the note of Rogers for $517.51, he having on deposit with the bank at the time $611.08, that the result which in the. usual course of things would follow was the immediate entry of a judgment against Rogers for over $8,000, and the seizure of his business by the sheriff. This condition of things arose because of an agreement made between Rogers and his creditors, of which the bank had no notice, and which they had no reason to suppose existed. Now, as has already been stated, the relation between the bank and its depositor is that of debtor and creditor, and that only; and the ordinary liability to which, a debtor subjects himself for nonpayment of a debt in an action for damages for the breach of his contract to pay is that he be mulcted in damages to the amount of his debt with interest and costs, and these are the only damages which in such case might fairly and reasonably be considered as naturally arising from the breach of the contract according to the usual course of things. As well might it be said that if A. promises to pay B. a certain sum on a given day, and B. had agreed with C. to make a payment to him upon that date, or subject himself to a forfeiture which would be very detrimental to his interest, and B. relied upon receiving the money from A. to make the payment, A., upon making default in payment, would be liable in damages for the whole interest which B. had forfeited, because he was unable, in consequence of A.’s default to B., to make his payment to C. The damages claimed in this action are clearly not those which naturally arose from the breach of a contract between debtor and creditor, and therefore cannot be recovered.

It may be said that this question was not raised in the court below, and the point is subject to the same criticism that is made in reference to the duty of the bank to pay the note in question. But it does not stand upon the same footing, as, if the action cannot be maintained at all, the court having dismissed the complaint the appellate court will not interfere with such dismissal, even though it was upon an erroneous ground. The exceptions should therefore be overruled, and judgment entered upon the dismissal, with costs in this court and in the court below.

O’BRIEN, J., concurs.

INGRAHAM, J.

There being no cause of action alleged in the complaint, I think the court was required to dismiss the complaint. I therefore concur.  