Flynn v. Woolsey — 32 N.Y. St. Rep. 953

Majority

p. 953

Peter T. Flynn, Resp’t, v. Edward J. Woolsey, App’lt.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

1. Payment — What will not constitute.

Defendant gave to plaintiff a check expressed to be in full to a certain date, but which was less than the amount due. It was not presented for payment, but was tendered back on the trial and it was not shown that defendant was injured by the failure to present it. Meld, that this did not constitute a payment.

Services — When recovery for may include cash paid out.

A complaint for work, labor and services as an expressman is sufficient, in the absence of objection, to admit proof of cash paid out for defendant in connection with such services, and the proof once in the amount of cash paid is properly included in the judgment.

Appeal from judgment in favor of plaintiff, entered on the report of a referee.

Action to recover for work, labor and services as an ex-pressman, performed for defendant. The bill of particulars contained charges of small sums of cash paid out for defendant in connection with such service.

S. B. & D. Noble, for app’lt; Benner & Benner (Henry G. Wilcox, of counsel), for resp’t

The plaintiff is an expressman and as such was employed by the defendant to carry and deliver various articles between the dates of June 20, 1886, and January 13, 1888. On January 8, 1888, the defendant sent his check to the plaintiff for $48.75, and expressing in terms on its face that it was in full to January 1, 1887. In fact it was not in full, but was some twelve dollars less than the debt at that date. The check was never either presented or returned until it was tendered back on the trial. This was not a payment in full or a payment at all. There are cases where the non-presentation of a check occasions a loss of its amount; the neglect to present will be sufficient to charge the holder with the amount of the check. No damage is proven in this case by the failure to present the check. Bradford v. Fox, 38 N. Y., 289 .

On the contrary it appears that the check was never presented and paid and that the defendant has voluntarily withdrawn the account from the bank where the check was payable. The services charged include no item for cash paid, but there were small sums paid out in and about the employment and really as part of the carrying. The expressman had to buy the goods ordered and pay for the same and the bill of particulars is made out for carting and cash paid out. The complaint, in the absence of objection, was sufficient to admit the proof, and the proof once in, the amount of the cash paid was justly called for in the judgment

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.