Burkhalter v. . the Second Nat. Bank

New York Court of Appeals

Burkhalter v. . the Second Nat. Bank

42 N.Y. 538, 40 How. Pr. 324, 1870 N.Y. LEXIS 76, 1870 N.Y. Misc. LEXIS 195

CourtNew York Court of Appeals

DecidedMarch 19, 1870

StatusPublished

Cited by30 cases

This text of 42 N.Y. 538 (Burkhalter v. . the Second Nat. Bank) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burkhalter v. . the Second Nat. Bank, 42 N.Y. 538, 40 How. Pr. 324, 1870 N.Y. LEXIS 76, 1870 N.Y. Misc. LEXIS 195 (N.Y. 1870).

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Opinion

Earl, Ch. J.

The plaintiffs were bound to demand payment of the first draft on the day they received it (March 26) or the next day (March 27), and they had the right to hold it until the 27th. The draft being payable on demand, they were bound to use reasonable diligence in demanding payment, and a demand on the same day, or the next day, is, in the law, a demand within a reasonable time. (Chitty on Bills 377; Spring’fd ed. of 1842; Harker v. Anderson, 21 Wend., 372; Smith v. Jones, 20 Wend., 192; Benton v. Martin, 31 N. Y., 385; Merchants’ Bank v. Spicer, 6 Wend., 443; Hazleton v. Colburn, 2 Abb. N. S., 199.)

It was sufficient to give the notice of demand and refusal on the next day, the 28th of March. (Farmers’ Bank of Bridgeport v. Vail, 21 N. Y., 485; Howard v. Ives, 1 Hill, 263.)

Therefore, in demanding payment of this draft on the 27th and mailing notices of non-payment on the 28th, the plain tiffs did all that the law required of them, and the defendant was charged as drawer of the draft, unless it was discharged by what took place on the 26th. On that day the draft was neither paid nor refused to be paid. Culver, Penn & Co. gave their check for it, and the check was in due time, the next day, in the ordinary course of business, through the clearing-house, presented for payment and payment refused. There was no agreement to receive the check in payment. It was taken by the plaintiffs in the usual course of business, they believing that it would be paid. They, then, on the 27th, returned the check and reclaimed the draft, and demanded payment upon it. The check did not for a moment operate as a payment of the draft, and the whole transaction does not show the absence of any diligence, which *542 the defendant had a right to demand of the plaintiff. It is'set- . tied that, upon precisely such a state .of facts, the drawer and . indorser of a .draft, are not discharged. (Johnson v. Bank of North America, 5th Robertson, 590; Smith v. Miller, 6 Robt., 157, 413; Turner v. Bank of Fox Lake, 3 Keyes, 425.) Without a critical examination of earlier cases, I propose to . rest the decision .of. this cage, upon the authority of the case last cited. The facts of the two cases are as nearly alike as they can be, and the principle involved is precisely the same. The judgment must, therefore, be affirmed.

For affirmance, Earl, Ch. J., Grover, Hunt, Ingalls, and Smith, J J. For reversal, Foster and Lott, JJ.

Judgment affirmed.

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Earl, Ch. J.

The plaintiffs were bound to demand payment of the first draft on the day they received it (March 26) or the next day (March 27), and they had the right to hold it until the 27th. The draft being payable on demand, they were bound to use reasonable diligence in demanding payment, and a demand on the same day, or the next day, is, in the law, a demand within a reasonable time. (Chitty on Bills 377; Spring’fd ed. of 1842; Harker v. Anderson, 21 Wend., 372; Smith v. Jones, 20 Wend., 192; Benton v. Martin, 31 N. Y., 385; Merchants’ Bank v. Spicer, 6 Wend., 443; Hazleton v. Colburn, 2 Abb. N. S., 199.)

It was sufficient to give the notice of demand and refusal on the next day, the 28th of March. (Farmers’ Bank of Bridgeport v. Vail, 21 N. Y., 485; Howard v. Ives, 1 Hill, 263.)

Therefore, in demanding payment of this draft on the 27th and mailing notices of non-payment on the 28th, the plain tiffs did all that the law required of them, and the defendant was charged as drawer of the draft, unless it was discharged by what took place on the 26th. On that day the draft was neither paid nor refused to be paid. Culver, Penn & Co. gave their check for it, and the check was in due time, the next day, in the ordinary course of business, through the clearing-house, presented for payment and payment refused. There was no agreement to receive the check in payment. It was taken by the plaintiffs in the usual course of business, they believing that it would be paid. They, then, on the 27th, returned the check and reclaimed the draft, and demanded payment upon it. The check did not for a moment operate as a payment of the draft, and the whole transaction does not show the absence of any diligence, which *542 the defendant had a right to demand of the plaintiff. It is'set- . tied that, upon precisely such a state .of facts, the drawer and . indorser of a .draft, are not discharged. (Johnson v. Bank of North America, 5th Robertson, 590; Smith v. Miller, 6 Robt., 157, 413; Turner v. Bank of Fox Lake, 3 Keyes, 425.) Without a critical examination of earlier cases, I propose to . rest the decision .of. this cage, upon the authority of the case last cited. The facts of the two cases are as nearly alike as they can be, and the principle involved is precisely the same. The judgment must, therefore, be affirmed.

For affirmance, Earl, Ch. J., Grover, Hunt, Ingalls, and Smith, J J. For reversal, Foster and Lott, JJ.

Judgment affirmed.

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Bluebook (online)

42 N.Y. 538, 40 How. Pr. 324, 1870 N.Y. LEXIS 76, 1870 N.Y. Misc. LEXIS 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burkhalter-v-the-second-nat-bank-ny-1870.

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