Rockwell v. Dye

42 A.D. 520, 59 N.Y.S. 776

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1899
• Status: Published

Opinions

Adams, J.:

It is conceded that the plaintiff’s assignor by her laches in presenting her check and demanding payment thereof of the drawee, discharged the drawer to the extent of the loss sustained by -him, unless it can be said that by his subsequent acts he expressly waived such |laches. Obviously, therefore, the sole question with which we have to deal.upon this review is whether, by demanding and receiving his dividend from the insolvent estate of Wallace Ward, the defendant’s intestate deprived himself of the right to insist that he was discharged from all liability upon the check in suit, which it may be assumed for the purposes of this appeal was received by the plaintiff’s assignor in payment for her cattle.

That a drawer of a check may waive any right which he has gained by reason of the failure of the payee or holder thereof to present the same to' the drawee within a reasonable time is undeniable. And such waiver may be accomplished in various ways. For instance, if with knowledge of the payee’s laches and the insolvency of the drawee, the drawer , promises to make good the check to the holder, this would amount! to an express waiver. A waiver may, however, be inferred from circumstances provided they are such as to indicate clearly and unequivocably an intent upon the part of the drawer to continue his liability; but whether express or implied, it is only available in cases where the drawer acts with full knowledge of the payee’s laches and óf the subsequent presentment and dishonor of the check. (Ross v. Hurd, 71 N. Y. 14; Murphy v. Levy, 23 Misc. Rep. 147.)

If, to illustrate, when the defendant’s intestate demanded and received from Ward’s administrator the dividend due him as a depositor, he knew that Mrs. Bettis’ check had not been paid and that the amount remaining to his credit at the bank was just sufficient to pay that check, it would hot be unreasonable to infer that such amount had been allowed to remain on deposit to meet the check, and that by withdrawing the same or so much thereof as he was entitled to receive, the depositor intended to waive any laches upon the part of the holder of the check. It is to be regretted that in stipulating the facts of this case the parties did not indicate with more particularity the amount remaining to the credit of Mr. Dye in the Forestville Bank at the time of its failure. It is conceded that it was equal to the amount of the check, but whether or not it was more, is a mere matter of inference, and there is really very little in the circumstances of the pase from which an inference can be legitimately drawn which would tend to support the contention of either party. In this condition of affairs it is difficult to see how the plaintiff can maintain her action, for, by reason of the most flagrant laches upon the part of her assignor, she is in no position to enforce the payment of her check unless she can establish affirmatively and by the clearest and most satisfactory proof that the defendant does not intend to take advantage of such laches, and this, in our opinion, she has wholly failed to do. Flo question is raised as to the sufficiency of the tender.

The 'judgment of the County Court should, consequently, be reversed, and that of the J ustice’s Court affirmed, with costs.

All concurred, except Hardin, P. J., who dissented in a memorandum.