instead refused and still refuses to keep its said promise; that defendant retained the draft in its possession from the time of its presentation until December 8, 1914, and during the whole of said time failed to formally accept or pay the draft although repeated demands for payment were made, until October 31, 1914, when it notified the State Bank of its refusal to formally accept or pay "said draft." It is then averred:

"Sixth. That in and by the law of Mexico it was then and there proIvided that, when a draft of the character of the draft herein set forth is presented for acceptance, the drawee must accept it or refuse plainly his acceptance on the same day in which the bearer presents it for that purpose. And it is also the law of Mexico that, if the drawee allows the day to pass without returning such draft, he will be liable for its payment."

The assignment of this cause of action to plaintiff is then alleged. This cause of action proceeds upon the theory that the telegram of March 5th was not an acceptance, but an agreement to accept, for the breach of which defendant is equally liable. For the reasons heretofore assigned, I do not believe the telegram in question was an agreement to accept, any more than it was an acceptance. In so far as plaintiff pleads upon the alleged telegram as an agreement to accept, I believe the complaint is demurrable. Plaintiff does not set forth any acts done by his assignor, liability assumed by it, or moneys paid out by it, after the receipt of the defendant's letter of March 19th, nor does he seek to predicate any liability thereupon. Had the State Bank paid out its moneys only after the receipt of that letter, a very different question would have been presented.

The statute law of Mexico sought to be pleaded not only raises a new theory of defendant's liability inconsistent with the remaining allegations of the second cause of action (which are based solely on the ground that the original telegram of defendant was an agreement to accept), but that law is so inartificially pleaded that it is not made applicable to the state of facts set forth. It is said that "in and by the law of Mexico it was then and there provided" that the drawee must accept or refuse acceptance at a certain time, but whether this law was in effect when the transactions in question occurred does not appear. It is also alleged that "it is also" the law of Mexico that, if the drawee allows a day to pass without returning the draft, he will be liable. But this allegation is also vague as to time, and it does not clearly show that the law was to the effect quoted when the transactions. between the parties were had. For all these reasons, the demurrer to the second cause of action should also have been sustained.

The order appealed from will be reversed, with $10 costs and disbursements, and the demurrers to the first and second causes of action sustained, with $10 costs, with leave to plaintiff to serve a further amended complaint as to said causes of action on payment of said costs.

Ordered reversed, with $10 costs, and motion denied, with $10 costs, and demurrers sustained, with leave to plaintiff to amend on payment of costs. Order filed.

CLARKE, P. J., and LAUGHLIN and SMITH, JJ., concur.

PAGE, J. (dissenting). The sufficiency of the allegations of the first cause of action depends upon whether the exchange of telegrams of March 3d and 5th constitutes an acceptance of the draft, so that the defendant became primarily liable thereon. In my opinion it does. If the draft had been presented to the defendant, and some one duly authorized had written "Good" upon the face thereof and signed the name of the defendant, there could be no doubt but that this would be equivalent to an acceptance of a negotiable bill of exchange in favor of the holder for the amount specified therein. Meads v. Merchants' Bank of Albany, 25 N. Y. 143, 146, 82 Am. Dec. 331. The acceptance, to be binding in favor of a holder who has parted with value upon the faith thereof, does not have to be upon the instrument itself. The Negotiable Instruments Law provides:

"Sec. 222. Acceptance by Separate Instrument. Where an acceptance is written on a paper other than the bill itself, it does not bind the acceptor except in favor of a person to whom it is shown and who, on the faith thereof, receives the bill for value."

A telegram satisfies the requirements of the statute; it is a writing, and the method of its transmission, whether by mail or telegraph, is immaterial. Molson's Bank of Montreal v. Howard, 40 N. Y. Super. Ct. 15, 20. The telegram was understood to be an acceptance, and, relying thereon, plaintiff's assignor discounted it. Fairly construed, I do not believe that the telegram of the defendant merely meant that C. Barreda, as municipal president of Nuevo Laredo, then had on deposit with defendant at least the sum of five thousand Mexican dollars. The inquiry of plaintiff's assignor was:

"Please telegraph us immediately if you will pay a draft signed C. Barreda, Municipal President Nuevo Laredo, for five thousand Mexican dollars."

This was not an inquiry as to the validity of the draft or as to the sufficiency of the account of the depositor. It was an explicit request for an acceptance of a specified draft for a definite amount. The answer returned was such that, had it been placed on the draft, it would have constituted an acceptance. In my opinion it should be so construed.

A similar case to the one at bar is Garrettson v. North Atchison Bank (C. C.) 39 Fed. 163, 7 L. R. A. 428, cited by Mr. Justice Dowling. The opinion in the Circuit Court of Appeals (North Atchison Bank v. Garrettson, 51 Fed. 168, 2 C. C. A. 145) did not lay stress on the words "Send on your paper." That court said: "The question put to the bank, and to which an answer was requested, was not whether Tate was good, but whether the bank would pay his check for a given sum."

It cannot be supposed that the bank intended to return an ambiguous answer, for the purpose of misleading the party asking the question, and therefore, if the answer had been limited to the words, "Tate is good," there would have been ground for holding that the bank thereby intended an affirmative answer to the categorical question put to it; but all doubt is put at rest by the remaining words of the answer, "Send on your paper." 51 Fed. 170, 2 C. C. A. 148.

Where, in the case at bar, the defendant replied that, "Draft C. Barreda, Municipal President Nuevo Laredo for five thousand Mexican dollars is good," the plaintiff's assignor was justified in believing that the defendant meant that if the plaintiff's assignor sent in the draft it would pay it, and where on the faith of that promise the plaintiff's assignor purchased the draft, the defendant became liable. for the payment of the draft.

The second cause of action sufficiently states a promise of acceptance, not alone from the facts above mentioned, but also from the later occurrence. When the draft was presented to the defendant bank, it returned it, explaining that there were two signatures and the official seal of the municipality lacking. The letter further said: "Once the above requisites having been fulfilled, we will have no objection to honoring the remittance herewith returned."

This letter is evidence that the defendant considered itself bound by the telegram of March 5th. The plaintiff's assignor secured the two signatures and the municipal seal and returned the same. It is urged that there is no consideration for this promise, as the plaintiff's assignor had already paid the money for the draft. In my opinion the performance of the condition imposed was a sufficient consideration for the agreement to accept.

The fact that a draft is discounted before acceptance does not render the acceptance without consideration. "It is the settled law of this state that the right of the holder of the draft against the acceptor is not affected by the mere fact that he discounted the draft before acceptance." Iselin v. Chemical Bank, 16 Misc. Rep. 437, 438, 40 N. Y. Supp. 388, 389. After the draft was returned in its completed form, the defendant retained it for several months. These facts would afford a consideration, because the plaintiff's assignor was deprived of the right to immediately proceed against the drawer; forbearance is necessarily granted. Mechanics Bank v. Livingston, 33 Barb. 458.

In my opinion, the order overruling the demurrers to both causes of action should be affirmed.

SECTION 3.-CONSTRUCTIVE ACCEPTANCE

HARVEY v. MARTIN.

(Nisi Prius, before Lord Ellenborough, C. J., 1807. 1 Campb. 425, note.) Action on bill of exchange, by payee against acceptor. Plaintiff transmitted the bill by post to defendant, the drawee, as soon as he received it, desiring him to accept and hand it over to plaintiff's agent in London, which was the usual mode of dealing between the parties. Plaintiff hearing nothing of his bill from his agent, wrote to defendant, remonstrating with him for the delay. The defendant answered, that he had retained the bill because he had once meant to accept it, which he now declined doing.

Lord ELLENBOROUGH. This is clearly an acceptance. If a bill is left for the express purpose of being accepted and is retained by the drawee, such retention is as much an acceptance as if he had written his name upon the face of it.

JEUNE v. WARD.

(Court of King's Bench, 1818. 1 Barn. & Ald. 653.)

Action against defendant as acceptor of a bill of exchange for £150. drawn by J. G. upon the defendant, in favor of the plaintiff, Jeune. At the trial at the London sittings after Hilary term, before Lord Ellenborough, C. J., it appeared that the defendant, together with another person of the name of Stubbin, was the coexecutor of the will of a Mrs. Leake, under which the drawer Godfrey was entitled to a legacy of £200. on his coming of age. In consequence of this, Godfrey, on the 28th May, 1817, drew the bill on defendant in favor of the plaintiff, as a payment of his bill for goods sold and delivered. The plaintiff, who lived in London, went over on the 29th May to the defendant's house in the country with the bill, and there left it for the purpose of being accepted, but it did not very clearly appear what then passed between the plaintiff and the defendant. At a subsequent period, however, in June, the plaintiff called on Mr. Egerton, the agent for the defendant in London, and introduced himself to him by producing a letter from the defendant, and begged his assistance towards. enabling him to obtain payment of the bill from the drawer. He then stated that he had been before with the bill to the defendant, and that the defendant had refused to accept it. Mr. Egerton told him that defendant had done very right in refusing to accept the bill; that Godfrey was, on the 5th July to receive his legacy, and that he recommended

plaintiff then to attend in order to secure the payment of the bill. Accordingly, on the 5th July the plaintiff attended; but, owing to some dispute as to the stamp for the receipt of the legacy, it was not paid. on that day, Godfrey then refusing to receive it. It was afterwards. paid to him. The plaintiff gave also in evidence a letter of the defendant, in answer to an application for the bill, which stated that having been applied to by the mother of the drawer to give up the bill to them, which, during all this period, had remained in his hands, he had, to avoid further trouble, destroyed it. This case having been proved, Lord Ellenborough, C. J., was of opinion that it amounted in law to an acceptance of the bill by the defendant, and directed the jury to find a verdict for the plaintiff.12

Lord ELLENBOROUGH, C. J. I do not recollect that any question was made at the trial as to the correctness of Gould's evidence. His statement was, that the bill in this case was originally left with the defendant for acceptance, and by the defendant's own letter it afterwards appeared that the bill had been destroyed by him. I certainly at that time proceeded on the ground that it was the ordinary and recognized custom of merchants, that when a bill has been left for acceptance, if after a reasonable time has expired (and here a reasonable time had expired) the party omitted to return the bill, he must be considered as having retained it for acceptance. This case goes still further; for here the defendant by his own act puts it wholly out of his power ever to return it, and thereby deprived the holder (there being no power of recreating the bill) of the advantage of being able to prove the handwriting of the drawer. In such a case I have always considered it as a matter of course that such retention and destruction of a bill of exchange was tantamount to an absolute refusal to deliver it, and was therefore, in point of law, an acceptance. But it is contended that no case can be cited, which goes so far as this proposition. The principle laid down by Lord Kenyon in Trimmer v. Oddy, seems to me to govern this case. That decision, I well remember, made a considerable impression on my mind. In the ordinary course of business, when the bill is left with the acceptor, he is to consider whether he will accept it or return it. If he, without saying anything, retains it in his hands, the law then presumes that he has done that for which the bill was left, and which is for the benefit of the party leaving the bill, viz., that he has accepted it. Here, however, it is said that Ward absolutely refused to accept, and it is contended that that circumstance makes the difference. But the period when he did this does not distinctly appear. It might be after a reasonable time had elapsed. Suppose the bill delivered to him on the 29th May; the meeting of Egerton and Jeune was not till the end of June, and the bill was not destroyed till the 9th of July. Then a rea

12 The arguments of counsel and the opinions of Abbott and Holroyd, JJ., who concurred with Bayley, J., are omitted.