It was conceded that the plaintiff had given no notice of protest or dishonor to the defendant, and the sole question raised by this appeal.relates to whether or not, under the circumstances disclosed by this record, the plaintiff is excused from failing to give such notice. (Neg. Inst. Law, § 185, subds. 4, 5.) There was some proof introduced tending to show that payment of the drafts had been stopped by defendant, but the learned trial court has correctly found that whether or not payment was stopped upon the drafts is immaterial in view of the fact that the defendant had no funds on deposit with the drawee. The appellant contends that the true criterion of the right to require due demand or notice of dishonor is not whether the drawer had funds in the drawee’s hands, but whether or not the drawer had a right to expect or require that the drawee would honor his bill. A considerable number of English cases, and Daniels on Negotiable Instruments (6th ed. 1913, § 1073) are cited in support of this proposition. It is, however, clear that the defendant had no funds on deposit with the drawee, and under the circumstances it had no right to require the drawee to pay the drafts. The question of the admissibility of plaintiff’s testimony concerning what the drawee had said, it is unnecessary, under the circumstances, to consider. The contention that the trial court erred in denying defendant’s motion to amend its answer to plead the Statute of Limitations is sufficiently answered by the decision of this court on the appeal from the order denying a similar motion. (202 App. Div. 821.)
It follows that the judgment and order must be affirmed, with costs.
Present — Kelly, P. J., Rich, Manning, Young and Kapper, JJ.
Judgment and order unanimously affirmed, with costs.