McIntosh v. Tyler

Foulest, J.: 'Construed by the custom of bankers, the transaction between the Wilber National Bank and P. H. Mitchell & Co. amounted to a (direction by the former to the latter to this effect: For the inclosed •check mail your draft on New York, or return-the check. The .drawee failed to send the draft, or to pay the check in any other way, and before doing so it was not authorized to mark the check, paid, or to charge it to the drawer’s account. The fact that the check was delivered to the drawee, and by it charged to the drawer’s account and marked .paid, did not discharge the drawer. (Turner [101] v. The Bank of Fox Lake, 4 Abb. Ct. App. Dec., 434; S. C., 3 Keyes, 425, and 2 Trans. App., 344; Burkhalter v. The Second National Bank, 42 N. Y., 538; Kelty v. Second National Bank, 52 Barb., 328.) The fact that a check mailed by the holder to the drawee for payment is not paid, when it would have been had it been presented at the payee’s counter, is not, it seems, in this State, a defense in favor of the drawer, though by the- transaction the drawer lost his deposit (Indig v. The National City Bank, 80 N. Y., 100; Briggs v. Central National Bank, 89 id., 182) though it has been held otherwise. (Farwell v. Curtis, 1 Bissell, 160; Drovers’ Bank v. Anglo-American Packing Co,, 18 Ill. App., 191.) The judgment of the County Court is affirmed, with costs. Hardin, P. J., and Martin, J., concurred.. Judgment affirmed, with costs.