Becker v. Fuller

Rodenbeck, J. Defendant Fuller alone demurs to the complaint on the ground of its insufficiency. The complaint states a cause of action for overdraft of funds of the bank formerly conducted by the plaintiffs’ intestate. The complaint alleges that Fuller was a town collector and kept an account at the bank; that he obtained a New York draft from the bank which was charged to his account and overdrew it in the sum of $1,109.87; that subsequent deposits were not sufficient to meet the overdraft and that there is [673] due the plaintiffs on such overdraft the amount for which judgment is demanded. The allegation that defendant Fuller overdrew his account is not a conclusion of law but a statement of fact which is accompanied by the further statement that this was accomplished by obtaining a New York draft, the amount of which was charged to his account. The transaction is in the nature of a loan made at the request of the defendant Fuller upon an implied promise to repay the same. Where a New York draft is issued to a depositor and the amount is charged to his account which is insufficient to meet the draft, such insufficiency constitutes an overdraft and no allegation is necessary in a complaint apon the overdraft of a promise to pay as the overdraft is in the nature of a loan made at the request of the defendant who impliedly promises to pay the same. Morse Banks & Banking (4th ed.), § 357; People’s National Bank of Middleton v. Rhoades, 90 Atl. Rep. (Del.) 409; Hudson Trust Co. v. Chappelle, 108 N. Y. Supp. 1005. The demurrer is overruled. Demurrer overruled.