On September 30, 1890, the plaintiff made with the defendant bank a deposit of several items, one of which was a check for $175, drawn upon an “ out of town bank.” Apparently, this check was lost after having been delivered by the defendant bank, which was not a member of the Clearing House, *305to its clearing bank. Of this loss the plaintiff was informed two months later by the president of the defendant, and told that the amount of the check would be charged back to him, to which he objected. It was so charged back. Six years thereafter, less two days, this action was brought, as is allowable under the statute. The plaintiff contended that the deposit was made in the ordinary course of business, and that he was entitled to draw against it. On the other hand, the defendant contended, and its president testified, that under the arrangement between the plaintiff and the bank, no payments were to be made against checks deposited before they had been collected by the bank, and that that arrangement applied to checks upon out of town as well as upon city banks. Upon this divergence of testimony, the learned justice at Trial Term denied a motion to dismiss the complaint, and then, upon the application of defendant’s counsel, the ease was sent to the jury upon the question as to what was the agreement between the parties respecting the deposit of checks. The jury found that there was no agreement prohibiting the plaintiff from drawing upon checks deposited, and thereupon judgment was properly entered, by direction of the court, in favor of the plaintiff. ETo tenable objection to any of the rulings of the learned justice upon the trial appearing, the judgment should be affirmed, with costs to the respondent.
Freedman, P. J., and Leventritt, J., concur.
Judgment affirmed, with costs, to respondent.