Weil v. Corn Exchange Bank

SEABURY, J.

This action is brought to recover damages alleged to have been caused by the defendant’s failure to give due notice of dishonor of a check deposited by the plaintiff with the defendant. The facts are undisputed. On August 10, 1908, the plaintiff deposited with the defendant a check drawn by the firm of Staffer & Pisnoff to the order of one Rosenberg. Rosenberg indorsed and delivered the check to the plaintiff for value, who indorsed it and deposited it with the defendant. The check was duly presented by the defendant, but was returned, marked “Account closed.” Notice of dishonor was not given to the plaintiff until August 24th. Upon receiving notice of dishonor, the plaintiff gave his check to the defendant and received in return the dishonored check. When the plaintiff gave his check to the defendant and received in return therefor the dishonored check, he had full knowledge of all of the facts stated above. He therefore waived notice of dishonor. Negotiable Instruments Law (Laws 1897, p. 742, c. 612) § 180.

The plaintiff, with full knowledge of the facts which relieved him from liability as indorser, and which charged the bank with negligence by reason of its failure to give the indorser due notice of dishonor, having paid the dishonored check, thereby acknowledged his continued liability and established a waiver of the bank’s laches in failing to give him due notice of dishonor. After this waiver on the part of the plaintiff he stood in the same position as if proper steps had been taken to charge him. Ross v. Hurd, 71 N. Y. 14, 37 Am. Rep. 1. In Ross v. Hurd, supra, Judge Andrews said:

“It has been frequently held that a promise by the indorser to pay the note or bill, after he has been discharged by the failure to protest it, will bind the indorser, provided he had full knowledge of the laches when the promise was made. A promise made under these circumstances affords the clearest evidence that the indorser does not intend to take advantage of the laches of the holder; and the law, without any new consideration moving between the parties, gives effect to the promise.”

The judgment is reversed and a new trial ordered with costs to the appellant to abide the event.

GILDERSLEEVE, P. J., concurs.