I concur in the conclusion to which Judge Ingraham has arrived. The judgment should be affirmed.
Clerks, J.A creditor, who receives a check from his debtor, receives it in payment of his demand, or does not receive it in payment of his demand. If he receives it expressly in payment of his demand, he can look alone to the check, and in his action must prove all that the law requires, such as demand of payment, &c., to entitle him to a recovery on the check. The burden of proving demand and non-payment, &c., devolves on him. But where the check is not received in payment of the demand, but as a method convenient to both parties for making payment, the creditor can return the check at any time, and resort to his action on the original demand; and having this right, he is under no obligation, in the first instance, of proving presentation for payment, or any of those preliminaries which are necessary to entitle him to a recovery on the check alone. To be sure, he is liable for any damage which has accrued in consequence of his neglect in not presenting the check for payment at the bank. But the burden of proof, in the action on the original demand, devolves upon the defendant. The case in 2 and 7 Hill, referred to by Judge Ingraham, was an action on the bill. On this the plaintiff relies for a recovery, and of course the burden of proof was on him to show that the defendant had sustained no damage by the delay in not presenting it for payment in due time.
In this case, I think, it was the duty of the defendant to *56show that he was damnified hy the plaintiffs’ omission to present the check for payment at the bank; and that it was not necessary for the plaintiffs to prove that they had demanded payment of it.
I am in favor of reversal.
Judgment affirmed.