Bowen and others against Newell impleaded with others, 8 N.Y. 190

Johnson, J., delivered the opinion of the court. The main question in this case is, whether an instrument in the following form is or is not entitled to days of grace: “ New York, October 5, 1849. “ Cashier of Thomson Bank, pay Zenas Newell or order two thousand dollars on the 12th inst., (Signed,) “ B. SEARLS & Co. (Endorsed,) “ ZENAS NEWELL.” The Thomson Bank is in Connecticut. Whether days of grace are to be allowed upon this instrument does not depend upon its being drawn upon a bank, for in that case the rule would be general, and deny grace to all bills drawn upon banks.

The contrary was adjudged in respect to a bill drawn at sixty days after date in Woodruff v. Merchants' Bank, (25 Wendell, 673; S. C. in error, 6 Hill, 174.) I do not see what difference in the legal rights of the parties it would have made if the check in suit had been worded “seven days after date” instead of saying “on the 12th inst.,” and yet if it had borne those words there would have been no possible ground for distinguishing the case from Woodruff v.

The Merchants' Bank, No case has been cited to the contrary, except In the matter of Brown, (2 Story, 502.) In that case, however, Judge Story puts his opinion upon a variety of grounds beside this, and upon this his opinion does not seem to me capable of being sustained, He says, “ The argument pressed is, that checks are always payable on demand, and that when payable at a future time they become inland bills;” and after saying that “ a check is not less a check for being post dated,” (with which Mohawk Bank v. Broderick agrees, 13 Wend. 133, S.

C. 10 W. 304,) he adds, “ It is commonly though not always payable to the bearer, but I conceive it to be still a check if drawn on a hank or hanker, although payable to a particular party only by name, or to him or his order. It is usually, also, made payable on demand, though I am not aware that this is an essential requisite.

The distinguishing characteristics of checks as contradistinguished from bills of exchange are, (as it seems to me,) that they are always drawn upon a bank or banker: that they are payable immediately on presentment, without the allowance of any days of grace; and that they are never presentable for acceptance, but only for payment.” Of all these characteristics, the only one that can serve any purpose in determining whether any particular instrument is a check or a bill of exchange is that it is drawn upon a bank or banker.

The others may or may not be legal qualities which belong to checks after they are ascertained to be checks, but do not aid in determining their character. The citations from Kent’s Commentaries in the same opinion, are merely to the same effect, and the case on this branch of it is after all put upon the statement that by the usage of banks and the understanding of parties, such instruments are always treated as payable on the very day designated as the day of payment.

We have, however, seen by the law of this state, as expounded in the court for the correction of errors, that conceding any instrument to be a check which is drawn upon a bank, it does not therefore possess the quality of being payable on the day when, by its face, payment is to be made, but that unless it be payable on demand, it has days of grace. The usage which was proved in this case ought to have been excluded, in accordance with Woodruff v. The Merchants' Bank. The judgment of the superior court and of the referee should be reversed, and a new trial ordered, with costs to abide the event. Rugóles, Ch.

J., Gardiner, Jewett, Mason and Willard, JJ., concurred in the opinion of Judge Johnson. Morse, J., was in favor of affirming the judgment of the superior court. Taggart, J., gave no opinion. Judgment reversed and new trial ordered.