
    John W. Turner and others, Respondents, v. The Bank of Fox Lake, Appellant.
    Giving a check in payment of an existing obligation, does not discharge the debt, unless the debt is paid.
    But where a check is received in pursuance of an agreement to take the same in payment of the debt, its acceptance may discharge an obligor, whose obligation was taken in pursuance of such agreement.
    
      A. Gibbs, for the appellant.
    
      B. F. Mudgett, for the respondents.
   Grover, J.

The question in this case is, whether the defendant was discharged as drawer of the first draft, as his supposed liability as such was the sole consideration upon which the one in suit was drawn, and that was drawn in ignorance of the facts upon which it is now claimed such liability had been discharged. The question is not affected by the fact that funds had been placed in the hands of the drawee by the drawer for the purpose of paying this particular draft, as the liability of the latter in such a case is the same as it is where the former is in funds for the payment of the general drafts of the drawer. The first ground upon which the defendant claims to have been discharged is, that the Nassau Bank, the agent of the holder for the collection of the first draft, accepted the check of the drawee for its amount, drawn upon a city bank, upon presenting the draft for payment at the place of business of the drawer in the city of New York. Although payment of such check was refused by the bank, so far as the drawer is concerned, it is clear that the check was no payment. He, therefore, did not pay the draft. The obligation of the defendant was that he should pay upon presentation. The draft was presented and payment neglected by the drawer; giving the check being no payment, as to him, unless paid. That created a contingent liability against Thompson, the drawee, and may be ■ regarded as equivalent to the taking by a creditor of an obligation against a third person from his debtor on account of a previous debt. The law is settled in this State that this does not amount to payment of the debt. (Porter v. Talcott, 1 Cow. 359; Vail v. Foster, 4 N. Y. 312.) If the obligation is taken pursuant to an agreement to take the same in payment, the rule is different. There is no claim in the present case that there was any agreement to take the check in payment. It did not, therefore, extinguish the obligation of the defendant. That obligation was to pay the draft to the holder if the drawee failed to pay upon presentation in due time; and the requisite notice thereof was given to the defendant. Stamping upon the draft the words, paid by Thompson,” and charging the amount to defendant, was wholly immaterial. The evidence showed that it was not paid, and thus any presumption arising from the stamping ivas completely overthrown. Had the holder’s agent been guilty of laches in presenting the check, such laches would have discharged the defendant. The evidence shows that it was presented the next day after drawn, through the clearing house, and payment refused, and also that this was the regular course of business for presenting checks drawn upon banks in Hew York. There was no laches in thus presenting it. Ho question was made but that the requisite notice of non-payment was served upon defendant. My conclusion is, that the defendant was properly charged upon the first draft, and that, therefore, the judgment should be affirmed.

All the judges concurring, except Davies, Ch. J., .and Bockes, J., . ■

Judgment affirmed.  