#### Frederick, Henry and John E. Hazelton, plaintiffs and respondents, *vs.*Marcus Colburn, defendant and appellant.

1. Bank checks issued and payable m the city of New York, must he presented during the same or the next succeeding day, during the usual hanking hours, in order to charge the drawer in case of the insolvency of the bank. A later presentment, without any excuse, will discharge the drawer.

2. The fact that the payees of a check received it as agents of third persons (also doing business in the same city) whereby delay occurred in passing the check to their principals, is not a sufficient legal excuse for that delay.

3. The drawer’s promise to pay a check which has not been seasonably presented, is not binding as a waiver of due presentment, unless he had notice of all the facts in relation to such presentment tending to discharge him.

(Before Bosworth, Ch. J. and White and Monell, JJ.)

Heard November 6,1863;

decided November 28, 1863.

This was an appeal from a judgment taken upon a bill of exceptions.

This action was to recover the amount of a check drawn by the defendant upon the Suffolk Bank. The check bore *346date the 10th of October, 1854; was made payable to the order of Bristow, Moore *&*Co., and was given for a piano forte sold to the defendant by Bristow, Morse & Co., as agents of the plaintiffs.. On the 11th of October, Bristow, Morse & Co. delivered the check to the plaintiffs, and it was by them presented for payment to the bank, on the 12 th, on which day, and previous to the presentment, the bank stopped payment.

There was evidence given tending to show a promise by the defendant to pay the check.

The defendant moved to dismiss the complaint on the ground that the check had not been presented in season to charge the drawer, which was refused, and the defendant excepted.

The defendant requested the justice to charge the jury that *ee*a promise made by Colburn subsequent to dishonor’, to pay the check, will not bind him, unless he was aware or had notice of all the facts as to presentment, that would tend to discharge him." The court' refused so to charge, and the defendant excepted.

The court charged that “ a promise made to Bristow, Morse & Co., unless they were agents in that particular matter, was of no more importance than if made to any stranger. But if he (the defendant,) made, the promise to Hazelton, (plaintiff,) he is bound by it." To this latter part of the charge the defendant excepted.

The jury rendered a verdict for the plaintiffs, upon which judgment was entered, and the defendant appealed.

*L. A Fuller,*for the defendant, appellant.

I. The testimony shows that the check, made and delivered to the plaintiff’s agents on the 10th, was not presented for payment till the 12th, which by all the authorities was too late, and discharged the makers. *(Little*v. *Phoenix Bank, 2 Hill,*425. *2 Greenleaf’s Evidence,*§ 195 *a. Chitty on Bills,*11 *Am. ed.*387, 513, *and note 2. Story’s Prom. Notes,*§§ 493, 494, 496. *Smith’s Merc. Law, 3d ed,*263, *note. Parsons’ Merc. Law,*91. *Byles on Bills,*15. *Down*v. *Halling,*4 *B. & C.*330. *Alexander*v. *Brouchfield,*1 *Carr.**347*and Marsh.*75. *Manning & Gr.*1061. *Maule*v. *Brown,*4 *Bing. N. C.*266. *East River Bank*v. *Gedney,*4 *E. D. Smith,*584.)

II. The promise of the defendant, which was relied on to cure this defect, was not shown to have been made with a knowledge of the facts, and therefore did not bind the defendant. (2 *Greenleaf’s Evid.*§ 190, *note*2. *Myers*v. *Coleman, Anthon’s N. P.*205. *Griffin*v. *Goff,*12 *John.*423. *Trimble*v. *Thorne,*16 *id.*151. *Crain*v. *Colwell, 8 id.*384 *and note.*Garland v. *Salem Bank,*9 *Mass. R.*408. *Sice*v. *Cunningham,*1 *Cowen,*398, 406. *Jones*v. *Savage,*6 *Wend.*658. *Tebbetts*v. *Dowd,*23 id. 378. *Story’s Prom. Notes,*§ 361.)

*C. M. Sandford,*for the plaintiffs, respondents.

1. The only question in the cause, which was submitted to the jury, was, whether the defendant had promised to pay the plaintiffs, after he knew that the bank had refused payment. Their verdict is conclusive upon it, and is sustained by the evidence.

II. Checks are inland bills of exchange payable on demand, and must be presented within a reasonable time. What is a reasonable time depends upon the facts. *(Chitty on Bills,*410. *Chitty, Jr. on Bills and Checks,*26 *a. McCullough’s Dic. of Commerce, title Checks. Harker*v. *Anderson,*21 *Wend.*373. *Chapman*v. *White,*2 *Selden,*417.) “ The holder may, within a reasonoble time, put the check into circulation, that is, within the time allowed for presentment; and the transferee will have the same privileges, and the prior parties will not be discharged if the last assignee makes due presentment.” . *(Chitty, Jr. on Bills and Checks, p.*52. *Approved, Harker*v. *Anderson,*21 *Wend.*387.)

III. The check was drawn on the afternoon of the 10th, passed to the plaintiff on the 11th, and presented the next morning. This was clearly in good time, according to established rules.

*348Monell, J.

Two questions are presented in this case. 1st, did the non-presentment of the check until the 12th of October discharge the drawer ? and 2d, was the promise óf the defendant to pay the check, a waiver of due presentment and notice P

Bank checks, for all the purposes of presentment and protest, are regarded like inland bills of exchange payable, on demand. *(Harker*v. *Anderson,*21 *Wend.*373.) They must be presented within a reasonable time, after delivery to the payee. What is a reasonable time, is a question of law, and must depend upon the circumstances of each case. *(Mohawk Bank*v. *Broderick,*10 *Wend.*304.) Very few of the cases have undertaken to define the period which may elapse between the giving and presentment; and probably no general rule can be established. As the circumstances of each case differ, so will the rule differ, and it will be suspended or applied to meet the exigencies or peculiarities of each case. *In Beeching*v. *Gower,*(1 *Holt,*313,) it was decided that a check given and payable in London in the morning, must be presented the next morning, or at farthest during the banking horns of the next day. In *Merchants’ Bank*v. *Spicer,*(6 *Wend.*443,) the check was given between two and three o’clock p. m., and presented by noon the next day, and it was held seasonable..

Most of the cases in the books arise upon bills, and between indorser and indorsee. In those cases less diligence is required. *(Mohawk Bank*v. *Broderick, supra.)*

In the .uncertainty in which the books have .left this question of reasonable time, I think it may safely be considered that checks issued and payable in this city, must be presented during, the same or the next succeeding day, during the usual banking hours. A later presentment, except under circumstances excusing the delay, will discharge the drawer. *(See Parsons on Bills and Notes, vol.*2, *p.*72.)

The check in question was received by Bristow, Morse & Co., about four o’clock in the afternoon of the 10th of Octoberon the next day, between three and six p. M. it was delivered by B. M. & Co. to the plaintiffs. It was not presented for pay*349ment until the next day, the 12th *;*at what hour on that day • it was presented, does not appear.

The circumstance that the payees of the check were the agents of the plaintiffs, did not authorize them to withhold the presentment; nor would the delay in passing the check to the principals until after banking hours the next day, excuse the presentment. There was nothing to prevent the presentment on the next day after the check was received, and the holders must be regarded as guilty of *laches*in not doing so. The drawer of the check had a much larger sum on deposit with the bank than the amount of the check, and the check would have been paid, if it had been presented before the failure of the bank. The plaintiffs must suffer for their own laches. The learned judge was therefore right in instructing the jury that the check was not presented within a reasonable time.

Was the promise of the defendant to pay the check a waiver of due presentment and notice ?

The evidence of the promise is contained in the testimony of F. Hazelton, one of the plaintiffs, who testified that he saw the defendant the next day after the failure of thebank ; that the defendant then knew the bank had stopped payment; that the defendant expressed great confidence that the bank would resume payment, and “ assured us that we would get our money, and if the bank did not pay, *he would.”*

This evidence was contradicted by the defendant, upon his examination; but the judge submitted the question to the jury, who, by their verdict, have found that the promise was made.

The learned justice refused, in submitting this question to the jury, to charge them that the promise would not bind the defendant, unless he was aware or had notice of all the facts, as to presentment, that would tend to discharge him; and charged that the promise to Hazelton, would bind him.

It is settled by numerous and uniform decisions, that to make a waiver, however clearly proved, obligatory upon the party ■making it, it is indispensable that it should be made with full knowledge of all the facts ; that is, with full knowledge that *350there has been a want of due presentment and notice. *(Thurston*v. *Wynn,*12 *Wheat.*183. *Reynolds*v. *Douglas,*12 *Pet.*497. *Story on Prom. Notes,*§ 361. *Tebbetts*v. *Dowd,*23 *Wend. 379,*411. *Sigerson*v. *Mathews,*20 *How.*496. 1 *Parsons on Bills and Notes, 595,*where all the cases are collected.)

The principle upon which these decisions proceed, is, that these declarations and acts amount to an admission of the party that the holder has the right to resort to him, and that he has received no damage for want of notice. *(Rogers*v. *Stephens,*2 *Term R.*713.)

In this case there is no evidence whatever, that the defendant knew at the time he made the promise, that the check had not been presented until the 12th, two days after it was issued. He knew the bank had stopped payment, but did not know of the *laches*of the holder in demanding payment. Even had there been any evidence on that subject, or, if knowledge of the bank’s failure could be imputed as knowledge that the check had been dishonored, yet the question was one for the jury, and should not have been kept from their consideration.

The learned justice, therefore, in my opinion, erred, both in his refusal to. charge as requested, and in his charge, that if the defendant made a promise to Hazelton, he was bound by it, without qualifying the instruction, that the jury must also find that the promise was made with a knowledge of the plaintiffs’ laches.

This is a bill of exceptions and not a case, and we can not look into it to see whether the evidence would have been sufficient ; nor speculate upon the effect which the instruction, had it been given to'the jury, would have had upon their- verdict. *(Willard*v. *Warren, 17 Wend.*257. *People*v. *Rathbun,*21 *id.*509.)

I am of opinion that the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Bosworth, Oh. J.” concurred.

Eew trial granted.