Williams v. Brown — 82 A.D. 353

Majority

p. 353

Samuel J. Williams, Respondent, v. Abraham C. Brown and Others, Appellants.^[1]

Headnote

€heck of a third person given inpayment for goods — when a failure; to present it until the lank has failed does not prevent the vendor of the goods from recovering the price thereof from the vendee...

"Where a vendee of goods delivers the check of a third party to the vendor in conditional payment for the goods, the failure of the vendor to present the check to- the bank upon which it is drawn until after such bank has become insolvent will not prevent him from recovering the purchase price of the goods from the vendee, where it appears that the drawer of the check has settled with the bank in such a way as to incur no loss by reason of its failure, and consequently could not successfully resist the enforcement of the check by the vendee.

Appeal by the defendants, Abraham C. Brown and others, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 5th day of June, 1902.

Hamilton It. Squier, for the appellants.

Hohert L. Luce, for the respondent.

This case was before the Appellate Division at the July term in 1900, when a judgment in favor of.the plaintiff was reversed on-account -of' the unexplained delay of the plaintiff in collecting the check which . was given in conditional payment for the.goods.sold . and delivered. ' ( 53 App, Div. 486 .) ' . ' . •

Upon the trial which the present appeal brings up for review is was made distinctly to appear that, the person whose check upon the Perth Amboy Bank was given in payment of the plaintiff’s account had settled with that bank in such a way as to incur no loss by .reason of .the failure of .the institution. Under these circumstances the delay in the presentation of the check did him no damage, and would- not be available to him as a' defense' in case the defendant, -should-endeavor to enforce payment' thereof-. As it is now "claimed that the defendants have not actually paid for the property which they purchased from the plaintiff; and that the- plaintiff has in no' wise harmed them or the -maker of .the check by his manner of. dealing with it, it follows that the judgment is right and- should be affirmed. ■ . ■ • ■

Present — Goodrich, P. J., Bartlett, Woodward, Hirsohberg and Jenks, JJ. ■

Judgment of the Municipal Court' affirmed, with costs..