Nolan v. Bank of New York National Banking Association.

Albany, 25 N. Y., 150. 16 N. Y. Rep., 128, per Wright and Selden, Justices.) The effect of those cases is, that the bank becomes the party dealing with the holder, being primarily liable; and if the bank has no valid defence the holder must recover. The question of equities between any of the prior parties cannot intervene against a bona fide holder for value. He deals upon the paper alone, looking to the bank as the primary, and, in most instances, the only reliable debtor. It is the financial character of acceptor that enters into the purchase or acceptance of the check, and its assumed ability to pay, which does not exist with reference to individuals.

The result is, in regard to this case, that the learned justice erred in deciding that the plaintiff was not entitled to recover because the check was in judgment of law dishonored. An acceptor is not discharged by the bill not being presented for payment for three or four years after it becomes due; he is only discharged by payment of the bill, or by a distinct and direct agreement by the holder to discharge him. (Farquhar v. Southey, 2 Carr. & P., 497. Dingwall v. Dunster, Doug., 247. Story on Bills, § 252.) The acceptor of a bill or note always remains liable. The acceptance is proof of his having assets in his hands, and he ought never to part with them unless he is sure that the bill has been paid by the drawee. He may, however, be relieved by the statute of limitations, as already suggested. As between the holder and the bank, the acceptance renders the latter the primary debtor, and the cases relating to the duty to demand payment in a reasonable time become inapplicable. These cases govern the relation between the holder and drawer. (Little v. Phenix Bank, 2 Hill, 429. Willetts v. The Phenix Bank, supra. Farm. and Mech. Bank of Kent v. B. and Drov. Bank, 4 Duer, 219.)

The check having been stolen, it became the duty of

Hamersley v. Mayor &c. of New York.

the plaintiff to establish that she was a bona fide holder for value, and upon that question she asked to go to the jury, which was denied. There was evidence on that subject which was independent of that of the witness Crane, and that of the plaintiff, which was stricken out; and the refusal to submit the question was in accordance, no doubt, with the view entertained by the learned justice and already suggested that the check was overdue and taken subject to existing equities. For these reasons the plaintiff was prejudiced, and a new trial should be granted.

Ordered accordingly.

[FIRST DEPARTMENT, GENERAL TERM at New York, November, 1873. Ingraham and Davis, Justices.]

A. GORDON HAMERSLEY and JOHN W. HAMERSLEY vs. THE MAYOR &c. OF THE CITY OF NEW YORK.

Where land has been taken by the corporation of New York for the extension of a street, under the act of 1818 (Laws, chap. 210,) and the damages of the owner have been assessed, and the owner allowed to remain in the possession and enjoyment of the premises, and to collect the rents, until actual possession was taken by the corporation, such continued possession and use of the premises are to be deemed equivalent in value to the interest on the award. Hence no action will lie against the corporation, to recover such interest. MULLIN, P. J., dissented.

The absolute requirement under the act of 1813 (Laws, chap. 86,) to pay the award within four months from the confirmation of the report is, by the act of 1818, changed to an obligation to pay four months after the expiration of the time appointed for carrying the improvement into effect. Until the arrival of the time appointed, or the expiration of the fifteen months, the possession, use and enjoyment of the lands are to remain undisturbed in the former owner and his tenants. There is no constitutional or other difficulty in carrying out this system. Per Davis, J.

PPEAL, by the defendants, from a judgment at the circuit, in favor of the plaintiffs.

Hamersley v. The Mayor &c. of New York.

The common council of the city of New York, in March, 1865, presented a petition to this court, praying for the appointment of commissioners to estimate and assess the damages sustained by owners and other persons interested in certain lands proposed to be taken for the purpose of extending Church street in said city. Such proceedings were had in this court, on the petition, that commissioners were appointed to assess said damages, and they made an estimate and assessment of such damages, in and by which they assessed the damages sustained by the plaintiffs, by reason of taking their land, at the sum of $93,180. The report of the commissioners was confirmed on the 30th of December, 1867.

On the 7th of December, 1868, the plaintiff presented to the common council a petition praying for the payment of the said damages, with interest from the 7th of January, 1868, the day on which the report was filed; but the same were not paid until the 12th of June, 1869.

The plaintiffs demanded the payment of interest on said damages from the expiration of four months from the confirmation of said report. This the defendants refused to pay. The plaintiffs received the amount of damages awarded. And it was conceded by the counsel that in the receipt for the damages the plaintiffs expressly stated they did not waive their claim for interest.

It was proved, on the trial, that the interest on the damages awarded to the plaintiffs from the 7th of December, 1868, when the petition was presented to the common council, until the 2d of June, 1868, was $3,274.93, and that the interest on that sum from the 12th of June, 1868, until the trial, was $160.95, making, in all, $3,435.98.

The defendants' counsel moved to dismiss the complaint, upon the following grounds:

1st. That no proper demand of the sum awarded had been made.

Hamersley v. The Mayor &c. of New York.

2d. That the plaintiffs having received the principal of the sum awarded, could not maintain an action to recover the interest.

3d. That on the facts proved, the plaintiffs were not entitled to recover.

The motion was denied, and the plaintiffs' counsel excepted.

The defendants put in evidence a resolution passed by the common council and approved by the mayor on the 13th of March, 1869; and that the actual opening of Church street took place on the first day of March, 1869.

The defendants offered to prove that the plaintiffs remained in the possession, and had not been disturbed in the use and enjoyment, of the premises for which the award was made, down to and including the time when the aforesaid principal was paid, and also down to the 13th of March, 1869. The plaintiffs objected to the evidence. The objection was sustained, and the defendants' counsel excepted.

The defendants' counsel renewed his motion to dismiss the complaint, on the grounds above stated and on the further ground that by the resolution of the common council the street was not opened until the 1st of March, 1869, and the damages did not become due until that time, and that on the whole case the plaintiffs could not recover.

The motion was denied, and the defendants' counsel excepted.

The court directed a verdict in favor of the plaintiffs for $3,435.98. To which ruling and direction the defendants' counsel excepted.

A. J. Vanderpoel, for the appellants.

John E. Parsons, for the respondents.

Hamersley v. Mayor &c. of New York.

DAVIS, J. By the statute of April 9, 1813, sec. 178, the corporation of the city of New York became seised in fee of lands taken for streets on the confirmation of the report of assessment of damages, &c., and were authorized "at any time or times thereafter to take possession of the same or any part or parts thereof without any writ or proceeding at law for that purpose." Under that statute the corporation were required within four calendar months after the confirmation of the report, to pay the awards, and if not paid, the parties in whose favor they were made were authorized at any time after application for payment to sue for and recover the same, with interest from the time of the application. The rights and remedies of the respective parties under this act were very simple and plain. The title vested in the corporation on confirmation of the report, and the immediate right of possession, and the power to take and exercise it at the pleasure of the corporation, were also given. The duty to pay within four calendar months was imposed, and the right to bring suit after application for payment and after the expiration of the four months, was conferred wholly independently of the action of the corporation in taking or omitting to take possession of the property. But this system was obnoxious to serious objections, for if one owner of the lands so taken was able to tie up the proceedings of the city by litigation, every other owner could at the end of four months demand and sue for his award, with interest, and at the same time keep his enjoyment of the premises, in some instances, for lengthy periods. Such or similar evils led to an amendment of the law. The act of 1818 (Laws of 1818, p. 196), was intended, I think, to make an important change in the system created by the act of 1813, and to relieve the city from some of the evils attendant upon that act. As I understand it the act of 1818 expressly clothes the corporation with authority to "suspend the