#### Isaac Levine, Appellant, *v.*The State Bank, Respondent.

(Supreme Court, Appellate Term, First Department,

May, 1913.)

Banks — action to recover damages for refusal to pay checks on ground of insufficient funds — exclusion of evidence.

Where, in an action to recover damages for a bank’s refusal to pay two cheeks drawn on it by plaintiff, on the ground of insufficient funds, it is clearly shown that plaintiff had a sufficient sum on deposit to his credit with defendant to meet the cheeks when presented for payment, it is error to exclude evidence as to injury of credit and to dismiss the complaint.

*525Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, rendered in favor of the defendant.

Goetz & Jacoby, for appellant.

Joseph E. Cosgrove (Moses Feltenstein, of counsel), for respondent.

Guy, J.

Plaintiff sues to recover damages from the defendant bank for the refusal to pay two checks drawn by plaintiff on the ground of insufficient funds, when, as matter of fact, plaintiff had on deposit with the defendant bank, at the' time of such refusal, sufficient funds to his credit to meet said checks.

The complaint is so drawn as to state causes of action both in tort and on contract; but, at the trial, plaintiff elected to proceed on contract. Injury to plaintiff’s credit was specifically alleged in the complaint, but, after plaintiff had elected to proceed on contract, proof as to injury to credit was excluded as irrelevant and an exception noted. It was established by the deposit book and by the monthly statement rendered by defendant to plaintiff, both of which were offered in evidence, that plaintiff had a sufficient sum on deposit to his credit with defendant to meet the checks at the time they were presented for payment. Plaintiff also offered in evidence the dishonored checks, each of which had a printed slip annexed thereto by the defendant containing a notice that a charge was entered against plaintiff for fifty cents for each notice of dishonor, which, for three refusals, two refusals on one check and one on the other, amounted to one dollar and fifty cents. On this proof plaintiff made out a *prima facie*case for at least the amount of the checks, *526twenty-four dollars, and one dollar and fifty cents charged for notices of dishonor, aggregating in all twenty-five dollars and fifty cents.

The plaintiff’s checks having been presented for payment, and payment refused, no further demand on the part of plaintiff was necessary before bringing an action on the implied contract existing between banker and depositor.

*“*The refusal to pay on presentation of the check, which presentation is equivalent to a demand of payment, gives to the drawer a right of action, in case he has funds in the bank to meet the check, and the refusal to pay was without his authority. (Viets v. Union Nat. Bank of Troy, 101 N. Y. 563, cited with approval in Citizens ’ N. Bank v. Importers *&*T. Bank, 119 N. Y. 202.) The only remaining question is as to whether plaintiff, in an action on contract, was entitled to offer proof of injury to plaintiff’s credit resulting from defendant’s breach of contract.

“ Where one sues to recover for the breach of a contra ctj the measure of damages is usually such an amount only as will repay him for the money loss which he has suffered because of the failure of the defendant to do as he agreed. * * * In addition, the jury were permitted to award him, also, such substantial damages for the impairment of his credit as they might conclude he had suffered. * * * *The act of a bank in refusing to pay its customer’s checks is something more than a mere nominal breach of the contract, to be paid for by requiring the bank to make*good. *the money which its act has cost him. Every one Jmows that the effect of such a refusal is to throw discredit upon the man who drew the check, and to impair his credit with the person with whom he is dealing;*and when it is made to appear that that act has been done by the bank, not once, but four times in close succession, with full knowl*527edge that he had funds in the bank sufficient to pay these checks * * * the jury might infer that the credit of the plaintiff was impaired by this act of the defendant bank, and this conclusion is sustained by many cases. (Rolin v. Steward, 14 C. B. 599; Schaffner v. Ehrman, 139 Ill. 109; Patterson v. Marine Nat. Bank, 130 Penn. St. 419; Morse Banks & Banking, § 458.) ” Davis v. Standard Nat. Bank, 50 App. Div. 214, 215.

The learned trial court erred in excluding evidence as to injury of credit and in dismissing the complaint.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Gerard and Page, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.