
    Charles Alleman, Resp’t, v. Ralph S. Bowen, Impl’d, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 7, 1891.)
    
    1. Negotiable paper--Endorser—Pleading.
    To constitute a cause of action against the endorser of a note, although his endorsement was made when the note was past due, it is necessary to allege notice to him of demand and refusal of payment, or of facts that would excuse such notice.
    2. Same.
    An admission hy the endorser that a certain amount remained unpaid and he supposed he was legally bound to pay it, is not sufficient to justify the court in holding, as matter of law, that he was given notice of nonpayment after demand of the maker.
    3. Pleading—-Amendment.
    Where the court improperly refuses to dismiss on the ground of insufficiency of the complaint, ana plaintiff does not apply for an amendment, the pleadings cannot after trial he conformed to the proof.
    Appeal from "a judgment, entered in Onondaga county, March 20, 1891, for $113, on the verdict of a jury directed by the court.
    
      B. N. Bailey and I. D. Garfield, for resp’t; W. S. Andrews, for app’lt.
   Martin, J.

—This action was against the maker and endorsers of a promissory note. No one defended except the appellant, who was the payee and first endorser. While the complaint contained allegations that the note was duly presented, at the place where the same was made payable, for payment and payment thereof duly demanded, which was refused, it contained no allegation that notice of such demand and refusal was given to the appellant. At the opening of the trial the appellant moved to dismiss-the complaint as to himself on the ground that it did not state facts sufficient to constitute a cause of action. This motion was denied, and the appellant excepted. We think this exception was well taken.

If it be admitted that the note was past due when it was endorsed by the appellant, still, as such endorser, he would be bound only upon the condition of demand upon the maker and notice of non-payment. Leavitts v. Putnam, 3 N. Y., 494; St. John v. Roberts, 31 id., 442; Eisenlord v. Dillenback, 15 Hun, 23; Rice v. Wesson, 11 Met., 400. To constitute a cause of action against the appellant, it was necessary to allege notice to the appellant of nonpayment or to allege facts that would excuse such notice. The complaint in this action contained neither, and was clearly insufficient. Cook v. Warren, 88 N. Y., 37 ; Clift v. Rodger, 25 Hun, 39.

The court erred in denying the appellant’s motion, and, as the plaintiff did not apply for an amendment of his complaint, but took the risk of its sufficiency, he cannot on this appeal be relieved from his position. Pope v. Terre Haute C. & M. Co., 107 N. Y., 61, 66; 11 N. Y. State Rep., 209; Tooker v. Arnoux, 76 N. Y., 397. In such a case the pleadings cannot .after trial be conformed to the proof. Southwick v. First Nat. Bk. of Memphis, 84 N. Y., 420.

We are also of the opinion that the evidence was insufficient to justify the court in directing a verdict for the plaintiff. There was no evidence of notice to the appellant of the demand and non-payment of such note by the maker, unless it was contained in the proof of the appellant’s statement that “ that amount ($50) remained unpaid and he supposed he was legally bound to pay it; morally he should not.” We think this evidence was not sufficient to justify the court in holding, as a matter of law, that the appellant was given notice of non-payment after demand of the maker, and that the court erred in directing a verdict. As was said by Judge Folger in Meyers v. Hibsher, 47 N. Y., 270: 11 Prima facie the appellant was entitled to have due presentment made of the note for payment, demand thereof, and notice of non-payment. (Spies v. Gilmore, 1 Comst., 321.) And before the respondent can recover of the appellant, he is bound to prove that he has taken these steps, or that he is excused therefrom, or that the taking of them has been waived.”

Judgment reversed on the exceptions, and a new trial granted, with costs to abide the event

Hardin, P. J., and Merwin, J., concur.  