Eichner v. Bowery Bank

The complaint fails to allege that the check .was indorsed by the payees,, and as it was payable to their order this was necessary before the bank could be required to pay it. Rowley v. National Bank of Deposit, 18 N. Y. Supp. 545; Lynch v. First National Bank of Jersey City, 107 N. Y. 179. There is an averment that the check was presented for payment, in the usual course of business, but this is not equivalent to an allegation of indorsement. It would be in the usual course of business if presented tó the proper officer in the usual manner, and the allegation does not necessarily embrace more; so that averment does not help the pleading.

*93The complaint does, however, contain allegations which seem to render it unnecessary to allege indorsement, viz.: That after the hank had refused to pay the check when presented, stating that it was no good, the payees at plaintiff’s request again presented it,, informing the hank that it must have made a mistake, hut the hank persisted in its refusal to pay the check and insisted that the same was no good and that they were not indebted to the plaintiff in any such sum.

It is manifest that the refusal to pay the check, based upon the-ground that the bank was not indebted to the .plaintiff in any such amount made it unnecessary to go through the idle formality of' indorsing the check, if it had not been indorsed before. The refusal was placed upon a specific ground and it would be useless to do-anything which would not and could not obviate the specific objection. The refusal of the bank was a repudiation of its obligation under its contract with the depositor and was equivalent to-a declaration that no check for the amount for which plaintiff’s check was drawn, or a greater amount, would be honored. This-was a breach of the contract and entitled the plaintiff to sue without further demand.

The rule is, “ If before the time for performance of a contract has arrived one party announce to the other that he does not intend to perform his promise, the latter may treat the contract as broken,, and bring an action immediately against the former for the breach. It is not necessary that he should postpone his suit until the time-for performance has arrived.” 3 Am. & Eng. Enc. of Law, 904.

This rule is applicable to every class of contract, and that between a bank and its depositor is no exception. It applies to contracts of insurance, and the payment or tender of premiums by an insured is excused where the insurer announces that it will not perform its-contract (Shaw v. Republic Insurance Co., 69 N. Y. 286, citingFranchot v. Leach, 5 Cowen, 506; Traver v. Halsted, 23 Wend. 66); with respect to contracts of sale “ the avowal of the defendant" that he conld not, and would not, fulfill the contract on his part-rendered wholly useless any demand on the part of the -plaintiff,, or offer on his part to fulfill the contract ” (Sears v. Conover, 4 Abb. Ct. App. 179); -to a charter party, “ The law is settled that-an action for breach of contract will lie at once, upon a positive refusal to perform, although the time specified for performance has-. not arrived ” (Donovan v. Sheridan, 4 Misc. Rep. 433); and to a-contract for board, it being held that, where a boarder under contract: *94to board for a certain time refuses to remain, the boarding-house keeper is not obliged to tender performance, but may recover the profits she would have made had he remained, Crane v. Powell, 46 N. Y. St. Repr. 668; affirmed, 139 N. Y. 379. The rule is ' applied to a contract of marriage, where the defendant before, the time fixed for the fulfillment of his promise renounces the contract and declares that he will not perform it (Burtis v. Thompson, 42 N. Y. 246); arid to a contract for personal services, where before the day fixed for the commencement of the services the employer does an act inconsistent with the . continuance of the contract. In such a case ” an action may be immediately brought by the other party, and, of course, without averring performance or readiness to perform on his part.” “ The party renouncing his engagement cannot complain if the opposite party takes him at his word, and treats him as having broken the contract.” Howard v. Daly, 61 N. Y. 362.

■ In this case the contract of the defendant, the bank, was to pay on demand, either by presentation of a. check or otherwise, arid a notification to any party who might rightfully make the demand that the bank was not indebted to, the' drawer dispensed with the formality .of presentation of a check, or indorsement by the payee of a check then presented, as essential to an actiori by the depositor.

Judgment reversed and demurrer' overruled, with costs in the City Court and in this court.

McAdam and Bischoff, JJ., concur.

Judgment reversed and demurrer overruled, with.costs, in the City Court and in this court. .