App. Div.]

THIRD DEPARTMENT, NOVEL 3ER, 1904.

plaintiff was a bona fide holder for value (Case last cited; Phoenix Ins. Co. v. Church, 81 N. Y. 218); but there was no such proof.

Nor was there any proof that any checks were drawn by Wilson against his account and paid by the plaintiff, or charged to his account, after the discount and before his death.

We think, therefore, that the plaintiff failed to satisfy the burden resting upon it and that its complaint was properly dismissed. The judgment should be affirmed, with costs.

All concurred, except HOUGHTON, J., dissenting in a memorandum. HOUGHTON, J. (dissenting):

I differ from my associates upon the proposition that there was sufficient evidence authorizing the trial court to find that the plaintiff was not a bona fide holder for value of the note in question. On the contrary, it seems to me that the uncontradicted evidence shows the plaintiff to be such holder.

The case was evidently tried upon the theory that the discounting of the note and placing it to the credit of Wilson on plaintiff's books was sufficient to establish that plaintiff paid value. I agree that this was not enough to establish that fact. But incidentally, through its cashier, whose evidence was uncontradicted, the plaintiff proved that on the sixth of August, between ten and eleven o'clock, Wilson obtained the discount of the note in suit together with five other notes, and that the proceeds of all of them were credited to him before that hour. The proceeds of the note in suit were $2,121.90, and the aggregate proceeds of the other five notes were $1,064.24, the plaintiff giving him credit at that time for $3,186.14. The witness further testified that at the close of the bank on that day there remained to his credit in the bank $1,264.16. Wilson died the following morning before banking hours, and two small checks were paid out of this balance which are not taken into consideration. The cashier was unable to state which checks were first paid on the day before Wilson's death, and it is apparent from the reading of the evidence that such checks as were paid were in court and exhibited to him on his examination. It is upon the interpretation of this evidence that I differ from the majority of the court. It seems to me that by fair interpretation it must be said that the bank in due course of business, before it had any notice of the

THIRD Department, NovembER, 1904.

[Vol. 99. infirmity of the note in question, paid out for Wilson the difference between the balance of $1,264.16, remaining at his death, and the $3,186.14 credited to him on the same day. Even if it be assumed that the proceeds of the five small notes were first paid, still the plaintiff had paid out nearly $900 of the proceeds of the discount of the note in suit, and under section 93 of the Negotiable Instruments Law it became a bona fide holder to that extent at least before it received any notice of infirmity in the instrument.

But it is said that the showing of a deposit of $3,100 and a balance of $1,200 on the same day at the close of banking hours does not establish the fact that the bank paid out the money upon Wilson's order or for his benefit. It seems to me no other interpretation can be put upon it. It certainly cannot be presumed that the bank officers misappropriated the money or defrauded Wilson of it, for fraud or larceny cannot be presumed. Nor can we presume that the plaintiff falsified its books. Upon the deposit by a customer of a sum of money in a bank the relation of debtor and creditor is created, and the bank agrees to discharge the indebtedness by paying the checks of the depositor. This is the ordinary and usual course of business. The courts have long taken judicial notice of the general course of business, including the universal practice of banks. (Merchants' National Bank of Whitehall v. Hall, 83 N. Y. 345; Hutchinson v. Manhattan Co., 150 id. 256.) It, therefore, seems right to presume that the $900 was paid out in due course of business and by check.

It is further claimed that this amount may have been applied upon past-due notes held by the bank against Wilson, or upon an overdraft made by him. There is no evidence that either one of these existed. But if we assume that in the usual course of business the plaintiff did have past-due notes of Wilson, it had the right to pay them if they were payable at his banking house without any express direction from Wilson, because the making of a negotiable note payable at a particular bank is equivalent to authorizing such bank to pay it out of the moneys of the maker. (Griffin v. Rice, 1 Hilt. 184; Etna National Bank v. Fourth National Bank, 46 N. Y. 88; Mandeville v. Union Bank, 9 Cranch, 9.) No further agreement, therefore, was necessary, because the making of the note payable at the bank in the first instance was a sufficient request that

App. Div.]

THIRD DEPARTment, NovembER, 1904.

it be paid. Even if a note were not payable at the bank, still it would seem that the bank was at liberty to apply the moneys of the depositor to the payment of such note as it owned. In Straus v. T. N. Bank (122 N. Y. 382) BRADLEY, J., says: "As a rule a deposit made in a bank by a person on general account becomes its fund, and the relation between the depositor and the bank is that of debtor and creditor, and, in the absence of any agreement to the contrary, the bank is at liberty to apply the money upon a demand due to it from the depositor."

While I do not think it can be presumed that Wilson had any overdraft at the time of making his deposit, for it is irregular and unauthorized banking to permit it and a species of fraud on the part of the depositor to create it (Morse Banks & Banking [2d ed.], 374), and every officer of a national bank is prohibited from certifying a check under such circumstances (U. S. R. S. § 5208), yet if there were an overdraft it was a simple loan, payable absolutely and in full. (Payne v. Freer, 91 N. Y. 48.)

What would be the effect of a drawer making a general deposit after having thus overdrawn his account? Would he not be presumed without any express direction to intend to pay his overdraft? In the general course of business he would know that instantly upon making his deposit the amount of his overdraft would be taken out and he credited with the balance. This must be the legal effect of the transaction.

If the plaintiff thus paid any such pre-existing debts upon the purchase of the note in question, it became a purchaser for value under section 51 of the Negotiable Instruments Law. To the extent of the $900, at least, which the plaintiff paid out before it had notice of any infirmity of the note in suit it was a bona fide holder, and the evidence did not warrant the trial court in finding to the contrary.

I, therefore, dissent from an affirmance of the judgment.

Judgment affirmed, with costs.

Cases

DETERMINED IN THE

FIRST DEPARTMENT

IN THE

APPELLATE DIVISION,

December, 1904.

EDWARD J. WARD, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.

*

Negligence-charge that if a car was started with a sudden jerk * * the verdict will be for the plaintiff”—it is erroneous where the negligence and contributory negligence are questions of fact.

In an action brought to recover damages for personal injuries which the plaintiff claimed to have sustained in consequence of the alleged negligence of the defendant's employees in suddenly starting one of its cars while the plaintiff was in the act of boarding it, it is improper for the court to charge, at the plaintiff's request, "If the motorman of defendant's car started the same with a sudden jerk before the plaintiff was safely on board, and while he was attempting to board the same, and plaintiff was injured thereby, the verdict will be for the plaintiff," as the effect of such charge is to take from the jury the determination of the questions of the defendant's negligence and of the plaintiff's contributory negligence, although both of such questions were, upon the evidence adduced upon the trial, questions of fact.

APPEAL by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of April, 1904, upon the verdict of a jury for $1,000, and also from an order entered in said clerk's office on the 14th day of April, 1904, denying the defendant's motion for a new trial made upon the minutes.

Bayard H. Ames, for the appellant.

Charles W. Lefler, for the respondent.

App. Div.]

PER CURIAM:

FIRST DEPARTMENT, DECEMBER, 1904.

The action was brought to recover damages for personal injuries which the plaintiff alleges that he sustained as the result of the negligence of the defendant's servants in starting a south-bound Eighth avenue car while he was in the act of boarding it at Twenty-third street.

Upon the conclusion of the court's charge to the jury the plaintiff made the following request, which was charged, the defendant duly excepting: "If the motorman of defendant's car started the same with a sudden jerk before the plaintiff was safely on board, and while he was attempting to board the same, and plaintiff was injured thereby, the verdict will be for the plaintiff.'

The error in this charge consists in taking from the jury the questions of negligence and contributory negligence. Where testimony is given it is the province of the jury to draw the inferences; and, unless it can be held on the testimony adduced that the negligence of the defendant and the absence of contributory negligence on the part of the plaintiff are established as matter of law, it is error for the court to entrench upon the right of the jury to determine these questions.

It is not contended that the evidence here established as matter of law the negligence of the defendant, that being clearly a question of fact for the jury. Nor as matter of law did it appear that the plaintiff was free from contributory negligence. The court, in the charge objected to, however, instructed the jury that, if the motorman started the car with a sudden jerk while plaintiff was boarding it and the plaintiff was thereby injured, "the verdict will be for the plaintiff." This virtually was concluding that evidence to that effect established, as matter of law, negligence on the part of the defendant and plaintiff's freedom from contributory negligence.

The law is firmly settled that contributory negligence prevents recovery, and that upon conflicting inferences it is a question for the jury.

Upon the other branch of the case the court in effect characterized the conduct of the motorman as testified to by the witnesses as negligent. In the recent decision of this court in Fiori v. Metropolitan St. R. Co. (98 App. Div. 49) such a charge was held to be ground for reversal, and therein the authorities are cited and dis