Opinion
November 10, 1930.
Appeal from the Municipal Court, Borough of Manhattan, Ninth District.
Nathan Spivack, for the appellant.
Harry Lyons, for the respondent.
Ordinarily, where a check is delivered at the same place where the bank is located it must, in the absence of special circumstances, be presented during the business hours of the next regular business day after it is received, and if the holder thereof fails to present it within that time and the drawee becomes insolvent so that the drawer loses the entire amount which he had on deposit to meet the check, the latter will be discharged. ( Murphy v. Levy, 23 Misc. 147.) It has been held that deposit by the payee in his own bank for collection on the day following the receipt of the instrument and presentation by the collecting bank on the day thereafter is a sufficiently prompt demand. ( Zaloom v. Ganim, 72 Misc. 36; affd., 148 A.D. 892. )
In the instant case, however, four days elapsed after receipt of the check by plaintiff's agent before its deposit in the collecting bank. In the absence of proof, therefore, of special circumstances to excuse the failure to make more prompt presentation the drawer would be discharged, and it was accordingly error to award judgment to plaintiff. The fact that the check was payable to Ginsberg, and not to the plaintiff, does not, on the present record, appear to be a sufficient excuse for the delay involved, especially since plaintiff's agent apparently had authority to indorse Ginsberg's name.
In addition, it was error for the trial court to exclude proof as to conversations with plaintiff's agents to show why the check in question was made payable to Ginsberg.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, LYDON, LEVY and CALLAHAN, JJ.