Opinion
February, 1901.
N.S. Levy, for appellant.
J.P. Solomon, for respondent.
This is an appeal by the defendant from a judgment rendered by the Municipal Court in favor of the plaintiff for the sum of ninety dollars and twenty-two cents, besides costs.
The action was brought to recover on a check cashed by the plaintiff at the request of the defendant. The answer was a general denial. The testimony shows that the defendant, having a check made by Rice Wallenstein to their own order on the Bowery Bank, indorsed the check and obtained the cash for it from the plaintiff. Subsequently the plaintiff deposited the check in her own bank, but the check was returned by the bank to the plaintiff, for what reason does not appear. Afterwards the plaintiff presented the check to the makers, Rice Wallenstein, for payment, but such payment was refused.
"In order to charge the drawer and indorsers of the check in case of dishonor, the holder must make presentment of the check within the time allowed by law for that purpose. Under ordinary circumstances the drawer and indorser of a check are not liable to an action or suit upon it without presentment to the bank and notice of dishonor." 5 Am. Eng. Ency. of Law (2nd ed.) 1040.
There is no evidence whatever in the case that the check was bad, or that the payment thereof was refused by the bank, or that it was ever presented to the Bowery Bank, or that any notice of a refusal by that bank to pay the check was ever given to the drawer or indorser.
The judgment must, therefore, be reversed, with costs to the appellant to abide the event.
O'GORMAN and BLANCHARD, JJ., concur.
Judgment reversed, with costs to appellant to abide event.