If an action had been brought by the present plaintiff against the Crawford County Bank, the drawer of the draft described in the complaint in this action, upon that instrument, it would bo impossible to distinguish the case from that of Burkhalter v. The *335Second National Bank of Erie (42 N. Y., 538), and tbe law as declared by tbe Court of Appeals in that case, and in Turner v. Bank of Fox Lake (4 Abb. Ct. App. Dec., 434; id., 3 Keyes, 425), would entitle the plaintiff to recover, unless overruled by the court which pronounced it. But the learned referee in this case has felt himself bound by the decision of the Court of Appeals in Smith v. Miller (43 N. Y., 171; 52 id., 545.) The defendant, The Fourth National Bank, was the collecting agent of the plaintiff, and as such received the draft drawn by the Crawford County Bank for collection. Its duty was to collect the draft, or, on failure to make collection, to take such steps in respect of it as would charge the drawer, or enable the plaintiff to charge the drawer. On presenting the draft to the drawees for payment the defendant received the check of the drawees on the Third National Bank, and delivered up the draft. According to the law of Smith v. Miller (ubi supra), it was the duty of the defendants to have presented that check for payment or certification, during the business hours of the day on which it was made. In Smith v. Miller the plaintiffs had about two hours of the day on which the check was drawn in which they might have presented it; and it was held that their neglect to do so discharged the drawers of the draft for which the check was given. Precisely the same course in relation to the check was taken in that case as,in this ; that is, the check was sent in for collection on the following day through the clearing house, and it was hold that the drawer of the draft was discharged by the negligence of the plaintiff in not presenting the check on the day before, the bank having failed on the following morning. The rule given by this case is an extremely dangerous and variable one; for if a delay of two hours in presenting the check on the day of its date be negligence, it is obvious that one of a single hour, or even of a much less period, where circumstances permit an immediate presentation, will have the same effect. There is no safety in such cases for a collecting agent or his principal, except in the use of the utmost diligence ; because, where five minutes after its delivery is abundant time in which to present a check under such circumstances, and would have secured payment, it must follow that fifteen minutes is too great a delay. Established commercial usages, and even the settled rules of law *336relative to commercial paper, are impotent to regulate this class of business, as the question of reasonable diligence in each case becomes one of fact, quite independent of such usages and rules. There is nothing so essential to the safety and convenience of commercial business as fixed and well-understood rules, definitely prescribing the time within which commercial paper must be presented, demanded, accepted or protested and notice given, etc.; and whatever tends to render such rules uncertain, and dependent upon the accidents of particular circumstances, is bad in policy and ought to be bad in law. Wo feel ourselves, however, like the learned referee, constrained to follow the decision in Smith v. Miller, and that leaves but a single question in this case, which is, whether it is sufficiently found or shown that the check of the drawees, if presented on the day of its date, would have been paid by the Third National Bank? It appears that the check was not “good,” within the legal signification of that term. Its makers were largely overdrawn at the bank, and had no funds there out of which the bank was legally bound to have paid the check; but it was shown, and was so found by the learned referee, that an arrangement existed between the bank and the makers of the check, under which, at that time and for more than a month previously, the bank had paid the overdrafts of the makers, and that the bank did pay or certify all other checks presented on the day of the date of this check, and did not refuse to pay any of their checks until the following day. The referee has not distinctly found that the check would have been paid, if presented on the day of its date; but the fair presumption, from the facts found by him, is that such payment would have been made. The defendant acted in good faith, and in accordance with the ordinary course of transacting business of this character ; but in the conflict of decisions in this State, it is our duty to follow the later case of Smith v. Miller, which leads, we think, to an affirmance of the judgment.
The judgment should be affirmed.
Beady and INGAlds, JJ., concurred.Judgment affirmed.