Sylvester v. Crohan — 45 N.Y. St. Rep. 320

Majority

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Horace C. Sylvester et al., Resp’ts, v. John F. Crohan et al., App’lts.

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

Bills and notes—Protest—Laws 1887, chap. 289.

Plaintiffs received on Friday a draft drawn by defendants on a banker here, which they deposited in bank, by which it was presented to the drawee the following day, and being requested by him to present again, did so on Monday, demanded payment and protested it. Held, that under Laws 1887, chap. 289, the plaintiffs had until Monday in which to protest the draft, and that they were not guilty of loches.

Appeal from judgment entered, after decision of the court, without a jury.

Goldsmith & Doherty, for app’lts ; John C. Green, for resp’ts.

action was brought to recover on a sight draft, made by defendants to the order of the plaintiffs and drawn upon one Abraham Backer.

The defense was that the payment of the draft was lost by the loches of the plaintiffs, and thereby the defendants became discharged from liability thereon. The draft being drawn in favor of a resident here and made payable here, the rights of the parties are to be governed by the laws of this state. In determining

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them, resort .must be had to the construction to be given to the statutes of the state with reference to the time within which a draft may be presented for payment and, if refused, thereafter protested.

The court found that the plaintiffs received said draft through the mails on Friday, July 31, 1891, at eleven o’clock in the forenoon, and without presenting it to the drawee, Abraham Backer, on the same day and hour deposited it to their credit in the Importers & Traders’ National Bank of New York, and returned said note to the defendants.

That a messenger of said bank presented said draft to Abraham Backer for payment on Saturday, August 1, 1891, between ten and half-past ten o'clock in the forenoon, and was directed to-leave notice and present it again on Monday, and,

That said draft was presented for payment to said drawee on Monday, August 3,1891, and payment thereof was then demanded and refused, whereupon said draft was then and there protested for non-payment, and on the same day the usual notice of protest was mailed to defendants at Savannah, Gra.

By § 1 of chap. 289 of the Laws of 1887, every Saturday from, twelve o’clock at noon until twelve at midnight is designated a half holiday; and for all purposes whatever as regards the presenting for payment or acceptance, and protesting and giving1 notice of the dishonor of bills of exchange, bank checks and promissory notes, might after the passage of the act be treated and considered as the first day of the week, commonly called Sunday, and as public holidays or half holidays, and all such bills, checks or notes, otherwise presentable for acceptance or payment on any of said days, shall be deemed to be payable or to be presentable for acceptance or payment on the secular or business day next 'succeeding such holiday; but in case of a half holiday shall be presentable for acceptance or payment at or before twelve o'clock noon of that day. Provided, however, that for the purpose of' protesting or otherwise holding liable any party to any bill of exchange, check or promissory note which shall not have been paid before twelve o’clock noon on any such half holiday, the demand of acceptance or payment thereof may be made and notice of protest or dishonor thereof may be given on the next succeeding secular day.

We think that this case falls within these provisions. The plaintiffs were bound to present the note for payment on the day succeeding the day on which it was received. It was presented for payment on Saturday and not paid, and by the provisions of the statute the plaintiffs had until the next succeeding secular or business day upon which to present a formal demand and protest and give notice thereof to the drawer, and this provision having been complied with, we think .the drawer was properly held.

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

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.