By the Court.
Ingraham, First J.I am not prepared to concede that a bank has a right to deprive the maker of a check of a demand on the bank for that check, by appointing another bank as a place of depositing such check for exchange. But as that point was in the plaintiffs’ favor, they have no right now to complain of that part of the judge’s charge.
Hor can they, with propriety, object to any part of it. The only exception stated is to “ a part of the judge’s charge,” *586which part is not designated. Such an exception is unavailing.
The only exception in the case is to the refusal of the judge to instruct the jury that the plaintiffs were entitled to recover. This he refused to do, and instructed the jury that it was for them to decide what the facts were; and if, in consequence of the delay on the part of the plaintiffs in making the presentment, or giving notice to the defendant, the check was not paid, and the defendant was injured thereby, it was just that the plaintiffs should bear the consequences of them own laches.
■ If the plaintiffs were right in leaving them check at the Metropolitan Bank, instead of presenting it at the bank where drawn, they should at once have given notice to the maker, instead of losing another day by presenting it at the Eighth Avenue Bank. If the demand at the Metropolitan Bank was not good, they were guilty of laches in leaving the check not presented from the 3d to the 5th instant. In this charge there was no error, and with proof of injury to the drawer from the failure of the bank between the date of the check and the day of notice to the drawer, the judge could not have charged as requested.
The necessity of immediate presentment of a check depends upon the condition of the drawee; a delay to present does not discharge the maker, if thereby he sustains no injury; but if, on the other hand, during such delay, the drawee fails, the holder must bear the loss.
This distinction is stated by Judge Nelson, in Little v. The Phenix Bank, 2 Hill, 425. He says, “ The same diligence is required by the holder in order to charge the endorser, and to escape any responsibility as to the continued solvency of the drawee. In either case it becomes the holder of a check to show the same promptness in presentment as in case of a bill or note.”
There was no error in the charge of which the plaintiffs can complain, and the verdict should not be disturbed.
Order denying a new trial affirmed.