Chuboh, Oh. J.
The referee found that, about five minutes before two o’clock, the plaintiffs delivered "to the- receiving teller of the defendants, for deposit, the check in question, which was drawn by a customer of the defendants upon them, and that the receiving teller entered it on the deposit ticket of the plaintiffs. These facts are sufficient to sustain the conclusion of the referee, that the defendants paid the check by receiving it as a deposit of money from the plaintiffs, and it is not material whether this is to be regarded as a conclusion .of fact or of law, or whether it is stated under the findings of fact or conclusions of law. This finding .is corroborated by the fact that, subsequent to the receipt and entry of this check, the defendants continued to pay the checks of Davis and Akin, and also to certify their checks, although their account was in fact overdrawn. These facts throw light upon the intention of the defendants to receive this check as a deposit, and to
take the risk of the account being made good by subsequent deposits, or of an indemnity from collaterals which the bank held, and the evidence was competent for that purpose.
It is insisted, however, that the presumption of law is, that the defendants were justified in regarding the check as deposited with them, as plaintiffs’ agents to collect, and that they are not liable if they used due diligence; and we were referred to the case of
Boyd v. Emmerson
(2 Ad.
&
El., 184) as an authoritative decision to sustain this position, which, it is said, has never been overruled, and has been approvingly cited in this State. I have carefully examined that case, and I find it lacks a very material element to make it an authority in this case, and that is, that the bank in that case did no act and its officer said nothing indicating an intention or assent to receive the check on deposit. The customer laid the check on the counter while the clerk was making an entry in the books relating to other business of the customer, saying
“
place this to my account,” and left the bank. The clerk said nothing, and did not see the check until after the customer had left the banking house, and did not debit the drawer with the amount or credit plaintiff with it, or cancel the check.”
The court placed its decision upon this distinction. Lord Denman, Ch. J., said: “ I think the statements in the declaration, that in consideration of the check being delivered up to the defendants, they promised to pay the amount or to allow the plaintiff credit for it, are not proved. If they did so promise, undoubtedly they became holders to his immediate use, but I think that what passed at the time of the presentment was, at the very least, equivocal. * * "* If, on delivering the check, he had said at once,
‘
cash me this check,) or
‘
give me credit for it,’ he must have drawn from Deader a distinct answer; but by merely saying 'place this to my account,’ he leaves it upon the usual terms, and subject to the contingencies' to which bills or checks so paid in are liable, and if he received notice of dishonor in proper time it. was sufficient.” The other judges placed their decision upon the same ground. It is unnecessary to determine how we should regard such a
transaction. It is enough that the decision is not an authority for the defendants’ position in this case. That case was cited approvingly in
Harker
v.
Anderson
(21 Wend., 376), upon the point that when paper is thus received for collection, notice of dishonor the next day is in time, and not for the position now claimed for it.
The presumption of law invoked by the defendants cannot be indulged in against the evidence. Here the plaintiffs clearly put in the check as a deposit, and the defendants as clearly received it as such, and credited the plaintiff with it. The credit on the deposit ticket was as significant an act, evincing the consent of the defendants to the payment of it, as if made upon the pass-book of the plaintiffs, and entered upon the books of the bank.
Financial business is transacted at banks in large amounts, with great rapidity, but according to definite and certain rules, which are well understood and acted upon by those engaged in that business. Very little is said, but very much is understood, and there is an absence of all formalities which tend to embarrass the facility of doing the business.
In determining the legal effect of such transactions, we must apply the same rules applicable to all contracts and business affairs, and effectuate and carry out the intention of the parties, to be gathered from their acts and declarations, and the accustomed and understood course of the particular business. Applying these rules, there can be no doubt but there was an express demand on one side, and consent on the other, that this check should be placed to the credit of the plaintiffs as a deposit. The legal effect of the transaction was precisely the same as though the money had been first paid to the plaintiffs, and then deposited. When a check is presented to a bank for deposit, drawn directly upon itself, it is the same as though payment in any other form was demanded. It is the right of the bank to reject it, or to refuse to pay it, or to receive it conditionally, as in
Pratt
v.
Foote
(9 N. Y., 463), but if it accepts such a check and pays it, either by delivering the currency, or giving the party
credit for it, the transaction is closed between the bank and such party, provided the paper is genuine.
In the case of a deposit, the bank becomes at once the debtor of the depositor, and the title of the deposit passes to the bank. The bank always has the means of knowing the state of the account of the drawer, and if it elects to pay the paper, it voluntarily takes upon itself the risk of securing it out of the drawer’s account or otherwise. If there has ever been any doubt upon this point, there should be none hereafter. A different principle would be applied to checks drawn upon other banks, or paper left for collection. In such cases the presumption of agency might arise.
Some stress was laid upon the circumstance that the check was presented to the receiving instead of the paying teller, but it is not claimed but the receiving teller had the authority to receive deposits, and to determine what checks upon the bank it would receive, and the depositor is not to be prejudiced by his misjudgment, or want of information even, as easy access to such information was within his reach; but there was no want of full knowledge on the part of both tellers that the drawer’s account was overdrawn largely at the time.
The officers of the bank doubtless believed that he would make his account good. At all events, they assumed the responsibility, and the bank is bound by their action.' (2 Keyes, 254; 23 N. Y., 335.) I think, also, that the defendants are estopped from claiming that they did not receive the check upon deposit. They entered it and acted with it as a deposit. The plaintiffs relied upon and acted upon the strength of the acts and admissions of the defendants.
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Chuboh, Oh. J.
The referee found that, about five minutes before two o’clock, the plaintiffs delivered "to the- receiving teller of the defendants, for deposit, the check in question, which was drawn by a customer of the defendants upon them, and that the receiving teller entered it on the deposit ticket of the plaintiffs. These facts are sufficient to sustain the conclusion of the referee, that the defendants paid the check by receiving it as a deposit of money from the plaintiffs, and it is not material whether this is to be regarded as a conclusion .of fact or of law, or whether it is stated under the findings of fact or conclusions of law. This finding .is corroborated by the fact that, subsequent to the receipt and entry of this check, the defendants continued to pay the checks of Davis and Akin, and also to certify their checks, although their account was in fact overdrawn. These facts throw light upon the intention of the defendants to receive this check as a deposit, and to
take the risk of the account being made good by subsequent deposits, or of an indemnity from collaterals which the bank held, and the evidence was competent for that purpose.
It is insisted, however, that the presumption of law is, that the defendants were justified in regarding the check as deposited with them, as plaintiffs’ agents to collect, and that they are not liable if they used due diligence; and we were referred to the case of
Boyd v. Emmerson
(2 Ad.
&
El., 184) as an authoritative decision to sustain this position, which, it is said, has never been overruled, and has been approvingly cited in this State. I have carefully examined that case, and I find it lacks a very material element to make it an authority in this case, and that is, that the bank in that case did no act and its officer said nothing indicating an intention or assent to receive the check on deposit. The customer laid the check on the counter while the clerk was making an entry in the books relating to other business of the customer, saying
“
place this to my account,” and left the bank. The clerk said nothing, and did not see the check until after the customer had left the banking house, and did not debit the drawer with the amount or credit plaintiff with it, or cancel the check.”
The court placed its decision upon this distinction. Lord Denman, Ch. J., said: “ I think the statements in the declaration, that in consideration of the check being delivered up to the defendants, they promised to pay the amount or to allow the plaintiff credit for it, are not proved. If they did so promise, undoubtedly they became holders to his immediate use, but I think that what passed at the time of the presentment was, at the very least, equivocal. * * "* If, on delivering the check, he had said at once,
‘
cash me this check,) or
‘
give me credit for it,’ he must have drawn from Deader a distinct answer; but by merely saying 'place this to my account,’ he leaves it upon the usual terms, and subject to the contingencies' to which bills or checks so paid in are liable, and if he received notice of dishonor in proper time it. was sufficient.” The other judges placed their decision upon the same ground. It is unnecessary to determine how we should regard such a
transaction. It is enough that the decision is not an authority for the defendants’ position in this case. That case was cited approvingly in
Harker
v.
Anderson
(21 Wend., 376), upon the point that when paper is thus received for collection, notice of dishonor the next day is in time, and not for the position now claimed for it.
The presumption of law invoked by the defendants cannot be indulged in against the evidence. Here the plaintiffs clearly put in the check as a deposit, and the defendants as clearly received it as such, and credited the plaintiff with it. The credit on the deposit ticket was as significant an act, evincing the consent of the defendants to the payment of it, as if made upon the pass-book of the plaintiffs, and entered upon the books of the bank.
Financial business is transacted at banks in large amounts, with great rapidity, but according to definite and certain rules, which are well understood and acted upon by those engaged in that business. Very little is said, but very much is understood, and there is an absence of all formalities which tend to embarrass the facility of doing the business.
In determining the legal effect of such transactions, we must apply the same rules applicable to all contracts and business affairs, and effectuate and carry out the intention of the parties, to be gathered from their acts and declarations, and the accustomed and understood course of the particular business. Applying these rules, there can be no doubt but there was an express demand on one side, and consent on the other, that this check should be placed to the credit of the plaintiffs as a deposit. The legal effect of the transaction was precisely the same as though the money had been first paid to the plaintiffs, and then deposited. When a check is presented to a bank for deposit, drawn directly upon itself, it is the same as though payment in any other form was demanded. It is the right of the bank to reject it, or to refuse to pay it, or to receive it conditionally, as in
Pratt
v.
Foote
(9 N. Y., 463), but if it accepts such a check and pays it, either by delivering the currency, or giving the party
credit for it, the transaction is closed between the bank and such party, provided the paper is genuine.
In the case of a deposit, the bank becomes at once the debtor of the depositor, and the title of the deposit passes to the bank. The bank always has the means of knowing the state of the account of the drawer, and if it elects to pay the paper, it voluntarily takes upon itself the risk of securing it out of the drawer’s account or otherwise. If there has ever been any doubt upon this point, there should be none hereafter. A different principle would be applied to checks drawn upon other banks, or paper left for collection. In such cases the presumption of agency might arise.
Some stress was laid upon the circumstance that the check was presented to the receiving instead of the paying teller, but it is not claimed but the receiving teller had the authority to receive deposits, and to determine what checks upon the bank it would receive, and the depositor is not to be prejudiced by his misjudgment, or want of information even, as easy access to such information was within his reach; but there was no want of full knowledge on the part of both tellers that the drawer’s account was overdrawn largely at the time.
The officers of the bank doubtless believed that he would make his account good. At all events, they assumed the responsibility, and the bank is bound by their action.' (2 Keyes, 254; 23 N. Y., 335.) I think, also, that the defendants are estopped from claiming that they did not receive the check upon deposit. They entered it and acted with it as a deposit. The plaintiffs relied upon and acted upon the strength of the acts and admissions of the defendants. The claim now set up is in,consistent with the acts and declarations of the party, and the plaintiffs have been injured by being deprived of the opportunity of retaining the check and reclaiming the consideration, or otherwise securing themselves, until the drawers had failed and run away. It is true, that the time in which the plaintiffs would have had this opportunity was short, from two to three o’clock; but it
appears that during that period the drawers continued to transact business and draw checks upon the defendants’ bank, and made deposits therein to a large amount, in one item of over §50,000. Under these circumstances it would be inequitable and unjust to permit the defendants to throw the responsibility of their own acts upon the plaintiffs, and the law has established a rule which forbids it. Every element of an
estoppel in pais
exists in this case.
(Dezell
v. Odell, 3 Hill, 215.)
It is urged that no demand of this money has been proved. A demand in some form is undoubtedly necessary in an action for money had and received against bankers and others holding the money in a fiduciary capacity.
(Downes
v.
Phœnix
Bank, 6 Hill, 297.)
It seems that the check was handed by the defendants to the plaintiffs’ messenger at about three o’clock, with a request that he would call upon the drawers to make it good, which he did without success, and then delivered it to the plaintiffs, one of whom immediately, and within two minutes after three o’clock, took it to the defendants, and claimed that they had received it as a deposit, and were bound to credit the plaintiffs with the amount upon their books, which they refused to do, and refused to accept the check from their hands. This was substantially a demand, and so understood by both parties. The plaintiffs insisted, in substance, that they should be paid the check by having the amount put to their credit upon the books of the bank. The defendants refused, and evidently intended to refuse, payment in any form, claiming that they were not obliged to pay. A check or other more formal demand would have been superfluous.
The judgment must be affirmed.
All the judges concurring, except Sapallo, J., absent.
Judgment affirmed.