Becker v. Fuller

99 Misc. 672

Opinion

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 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.