Where a man draws a check on a bank, he is presumed to have funds in the bank to meet it, and he is not liable upon the check until it is presented for payment. But such presentment is in some cases unnecessary. Where the drawer, with knowledge that it has not been presented, promises subsequently to pay it, and where the drawer fraudulently withdraws the funds intended for payment of the check; then proof of demand and notice is unnecessary. (1 Hall, 68, 81 ; 1 T. R. 405.)
So when the drawer had no funds in the hand of the drawee, and has not sustained damage from want of presentment. (10 Wend. 306.)
The latter rule applies to this case. The evidence shows that there were no funds in the bank at the time the check was payable, nor since, except upon one occasion, when a deposit was made, and withdrawn almost immediately, and that this check would not have been paid without funds. This evidence was sufficient to dispense with a demand and notice. It is apparent that the defendant has sustained no damage ; that he has made no provision to pay his check; that the bank would not have paid when presented; and his subsequent conduct in withdrawing all the money he deposited, shows he did not intend to pay through the bank, or to leave funds for that pur*402pose. (Murray v. Judah, 6 Cow. 490 ; Mohawk R. R. v. Bradish, 10 Wend. 306 ; 13 Wend. 133 ; Gough v. Steats, 13 Wend. 552 ; Harker v. Anderson, 21 Wend. 372, &c.)
The judgment should be affirmed.