#### S. S. Smith *et al.*plaintiffs and respondents, *vs.*Abraham D. A. Miller, impleaded, &c. defendants and appellants.

1. The presentment of a check upon a bank in the city of Hew York, through the clearing house, the next day after it is drawn, is in season to charge the maker, if not paid and notice is given him.

2. Even without evidence that such is the regular course of business for presenting checks drawn on banks in that city, the court can take judicial notice of the fact. A custom so well established and universally acted upon must be presumed to be generally known.

3. Where, upon presentment of a draft to its drawees, for payment, they give their check for the amount, upon a bank in the city of Hew York, which is not presented to the bank on which it is drawn, until the next day, when it is presented through the clearing house, and payment refused, the draft will not be deemed paid, as to the drawers, so as to prevent a recovery against them *158for the debt for which the same was given; even if the check, had 'it been presented on the day it was drawn, would have been paid.

(Before Monell, Garvin and Jones, JJ.)

Heard May —, 1868;

decided May 30, 1868.

This was an action by the plaintiffs for goods sold and delivered by them to the defendants, in which the latter set up, among other defensés, that of payment.

On the 16th of Hovember, 1867, the defendants being indebted to the plaintiffs, in the sum of $2968.69, balance due for sugar theretofore purchased from the plaintiffs, by the defendants, the plaintiffs wrote to the defendants as' follows:

“Hew York, Hov. 16, 1867. Messrs. Miller & Greenier, Buffalo, H. Y.

Dear Sirs: It is important to us to have our last sugar closed up by Tuesday. If you have not yet remitted us the balance on your lot, please do so on receipt of this, as we only wait for your amount to enable us to do so.

$2968.69. Respectfully yours,

• John M. Smith’s Sons & Co.”

In response, the defendants, on the 18th of Hovember, 1867, mailed, at Buffalo, to the plaintiffs at Hew York, the following "draft.

$2968.69. “Buffalo, Hov. 18,1867.

At sight after date pay to the order of John M. Smith’s Sons & Co. twenty-nine hundred and sixty-eight *-fifa*dollars, value received, and charge to account of

' Miller, . Greenier & Co.”

To Jas. K. Place & Co. Hew York.”

On the 19th of Hovember, 1867, between 1 and 2 o’clock, the plaintiffs, (composing the firm of John M. Smith’s Sons & Co.,) indorsed the above draft and presented it to the drawees for payment; the drawees gave their check on the Manufacturers’ Hational Bank, dated Hew York Hovember 19, 1867, payable to the plaintiffs’ order, for the amount of *159the draft, to the plaintiffs, and received from them the draft.

Thereupon the plaintiffs wrote to the defendants:

“New York, 19th Nov. 1867. Messrs. Miller, Greenier & Co.

, Gentlemen: Your favor of yesterday’s date, covering order on James K. Place & Co. for $2968.69, balance bill on sugars, has been received and said draft has been paid.

We remain yours truly,

John'M. Smith’s Sons & Co.”

On the 19th of November, 1867, about 2 p. M. the plaintiffs deposited the check, indorsed by them, in their own bank, (The Citizens’ Bank.) It went from there to the clearing house, and was presented by the clearing house to the bank on which it was drawn, on the 20th of November, 1867,. a^iout twelve o’clock, when payment was refused. Thereupon the plaintiffs wrote to the defendants:

“ New York, Nov. 20, 1867. Messrs. Miller, Greenier & Co. Buffalo, N. Y.

Gent.: We wrote you yesterday acknowledging receipt of your order on James K. Place & Co. for $2968.69, and 'stating the same had been paid. We received in the usual course Messrs. Place & Co.’s check for the amount, but on presentation at the bank on which it was drawn said check was refused payment; the amount therefore remains unpaid by you. We are yours,

John M. Smith’s Sons & Co.”

This action was brought to recover the amount of the debt, for which the draft was drawn by the defendant.

It appeared on the trial that during the whole- of the 19th of November, there was on deposit in the bank on which the check was drawn sufficient funds to pay the check, and that at the close of banking hours on that day there remained money enough in thfe bank to pay this check

*160The judge directed a verdict for the plaintiffs. A motion for a new trial on the judge’s minutes, was made and denied. Judgment being thereupon entered in favor of the plaintiffs against the defendants, the defendant Miller appealed therefrom.

*J. W. Choate,*for the appellants, defendants.

*E. T. Gerry,*for the respondents, plaintiffs.

By the Court, Jones, J.

There were three points raised and argued by the appellants’ counsel, on the argument of this appeal. Two of them were as to the rejection of certain evidence offered by him. The third and principal one was, that by the receipt of the check and neglect to present it on the day of its receipt, during the whole of which day there was sufficient funds in the bank to pay it, the draft is to be regarded as paid, as against the drawers, although there was no express agreement to accept the check in payment ; and that it results from this that the debt for which it was drawn, being the demand- sued on, must be regarded as paid.

The question as to whether a draft is, under such circumstannces, to be regarded as paid as against the drawer, has twice been before the Court of Appeals. In the case of *Kobbe*v. *Clarke,*decided in 1853, *(Selden's Notes, No.*4, *p.*11,) it seems to have been so regarded. But in the case of *Turner*(or Tanner) v. *Bank of Fox Lake,*(2 *Appeal Cases, N. Y. Trans.*344,) it was held it should not be so regarded. There was an element in the latter case which did not exist in the former, and on the existence of which the latter decision turned. In the latter case the check was presented for payment through the clearing house on the day after it was received by the payee, and the evidence showed that this was the regular course of business for presenting checks drawn upon banks in the city of Hew York,

Upon these facts, which did not appear in the first case, *161it was held, that although if they did not exist the nonpayment of the check on the day of its receipt might be sufficient laches to discharge the drawer of the draft, yet by reason of the existence of these facts, there was no such laches in presenting the check on the day after its receipt through the clearing house, as would dishonor the drawer In the case at bar it appears that the check was presented through the clearing house the next day after it was drawn. It is true there is no evidence that this is the regular course of business for presenting checks drawn on banks in the city of New Tork. Such evidence was. offered, and excluded as being unnecessary. I think, however, judicial notice may be taken of such being the regular course of business. It is so well established and so universally acted on, and has been, for so many years, that it must be generally known. (1 *Greenl. on Ev. p.*10, § 6. *Smith*v. *The New York Central Railroad Co.,*43 *Barb. at p.*231.) It is not therefore necessary to send this case back for a n.ew trial simply to have proof supplied of a fact so known and conceded. "Under the. authority, then, of that recent case in the Court of Appeals, the draft in question was not to be considered paid as to the drawers.

The exceptions taken to the exclusion of evidence were,

1st. To the rejection of questions asking the bank officers if the check would have been paid if it had been presented on the 19th. It is unnecessary to pass on this exception, since in the disposal of the third point it has been assumed that the check would have been paid if it had been presented on the 19th.

2d. To the rejection of the offer to show why, although there were funds in the bank on the 20th, at the time of the presentation of the. check, it was not paid. The reason is immaterial, unless it was some negligence or fault on the part of the plaintiffs, which was not offered to be shown.

Upon the points raised and argued, (and we have examined no others,) I am of opinion the judgment should be affirmed, with costs.