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Cuminsky v. Kleiner

68 N.Y.S. 776 Court N.Y. App. Term Decision date 1901-02-25 English

Delivered by ANDREWS, P. J.

Contents

Majority

p. 776
(34 Misc. Rep. 181.)
CUMINSKY v. KLEINER.
(Supreme Court, Appellate Term.
February 25, 1901.)

Headnote

Checks—Presentation—Necessity—Notice oe Dishonor.
The indorsee of a check cannot recover thereon against an indorser, it not appearing that the check was bad, or that it was ever presented to the drawee, and notice of dishonor given to the drawer or indorser.
Appeal from municipal court, borough of Manhattan, Fourth district.
Action by Beckie Ouminsky against Joseph Kleiner. From a judgment in favor of plaintiff, defendant appeals.
Reversed.
Argued before ANDREWS, P. J., and O’GORMAN and BLANCHARD, JJ.
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 $90.22, 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 cheek 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

p. 777
of dishonor.” 5 Am. & Eng. Enc. Law (2d Ed.) p. 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. All concur.