
    
      Nathan Eichner, Appellant, v. The Bowery Bank of New York, Respondent.
    (Supreme Court, Appellate Term,
    April, 1897.)
    1. Banks — Pleading — Refusal to pay check.
    The complaint in an action against a bank to recover damages caused by a failure to pay a depositor’s check must allege that the check was indorsed by the payee.
    2. Same — Indorsement.
    An averment that the check was presented for payment in the usual course of business is not equivalent to an allegation of indorsement.
    
      3. Same — Denial of liability.
    Where, however, the bank refused to pay the check on the ground that it was not indebted to the drawer in any such amount, it is unnecessary to allege or prove an indorsement or presentation of the check.
    Appeal by the plaintiff from an affirmance by the General Term of the City Court of a judgment of the Special Term, sustaining the defendant’s demurrer to the complaint on the ground that it does not set forth facts sufficient to constitute a cause of action. The complaint is as follows:
    “ The plaintiff, complaining of the . above-named - defendant, shows- to this court and alleges:
    “ I. On information and belief, that the defendant was at all times hereinafter mentioned and is a corporation organized under the laws of this state for the purpose of carrying on the banking ■business in the city of Kew York.
    “ II. That the plaintiff was, at the times hereinafter mentioned, a merchant, carrying on business in the city of Kew York, and that up to the time of the occurrence of the event hereinafter mentioned was in good standing and credit.
    “III. That between the 26th day of January, 1895, and the 20th day of April, 1896, the plaintiff was a depositor in the defendant bank, and had and kept a banking account with the defendant.
    “ IY. That on the 12th day of April, 1896, the plaintiff had a balance in said bank due and owing to him, exceeding the sum of $9, and that plaintiff, at the times hereinafter mentioned, continued to have and had a balance in said defendant bank exceeding said sum of $9", subject to plaintiff’s check.
    “ Y. That on the 12th day of April, 1896, the plaintiff drew his check on the defendant bank for the sum of $9, payable to the order of Field, Chapman & Fenner, and delivered the same to said Field, Chapman & Fenner, for an indebtedness due- and owing from plaintiff to them.
    “ YI. That said firm of Field, Chapman & Fenner was and .is a firm of auctioneers in the city of Kew York, who extended- credit to this plaintiff, and who had a high esteem for this plaintiff, and with whom plaintiff had large and profitable dealings, which esteem and credit were of great value to- plaintiff.
    “ YU. That said firm of Field, Chapman & Fenner caused said check to be presented for payment at defendant’s bank during business hours and in the usual course of business, but defendant, notwithstanding the defendant had sufficient funds belonging to plaintiff on deposit with it, refused to pay said check, stating that the ■same was ‘no good/ whereupon said check was returned to said Field, Chapman & Fenner dishonored.
    “ VIII. That Field, -Chapman & Fenner gave notice to plaintiff ■of such dishonor, whereupon this plaintiff informed Field, Chapman & Fenner that the bank must have made some mistake and instructed them to again present the same for payment.
    “ IX. On information and belief, that Field, Chapman & Fenner did again present said check to defendant for payment, informing the bank that they must have made a mistake) but said bank persisted in their refusal to pay said check and insisted that the same was no good, and that they were not indebted to plaintiff in any such amount, and the. defendant refused to honor said check.
    “ X. That the acts of defendant caused this plaintiff injury, in his good name and credit, and the said firm of Field, Chapman & Fenner withdrew from this plaintiff their esteem and credit, and refused to extend plaintiff further credit, whereby plaintiff suffered .great loss and was injured in his good name and reputation in his business as a merchant with Field, Chapman & Fenner, and with ■others, and his standing in the community as a reputable merchant .greatly lowered, to his clamage $500.
    “ Wherefore, plaintiff demands judgment against the defendant ior the sum of $500, besides the costs and disbursements of this ■action.
    Arthur Furber and Moses Goodman, for appellant.
    Abram Kling, for respondent.
   'Daly, P. J.

The complaint fails to allege that the check .was indorsed by the payees,, and as it was payable to their order this was necessary before the bank could be required to pay it. Rowley v. National Bank of Deposit, 18 N. Y. Supp. 545; Lynch v. First National Bank of Jersey City, 107 N. Y. 179. There is an averment that the check was presented for payment, in the usual course of business, but this is not equivalent to an allegation of indorsement. It would be in the usual course of business if presented tó the proper officer in the usual manner, and the allegation does not necessarily embrace more; so that averment does not help the pleading.

The complaint does, however, contain allegations which seem to render it unnecessary to allege indorsement, viz.: That after the hank had refused to pay the check when presented, stating that it was no good, the payees at plaintiff’s request again presented it,, informing the hank that it must have made a mistake, hut the hank persisted in its refusal to pay the check and insisted that the same was no good and that they were not indebted to the plaintiff in any such sum.

It is manifest that the refusal to pay the check, based upon the-ground that the bank was not indebted to the .plaintiff in any such amount made it unnecessary to go through the idle formality of' indorsing the check, if it had not been indorsed before. The refusal was placed upon a specific ground and it would be useless to do-anything which would not and could not obviate the specific objection. The refusal of the bank was a repudiation of its obligation under its contract with the depositor and was equivalent to-a declaration that no check for the amount for which plaintiff’s check was drawn, or a greater amount, would be honored. This-was a breach of the contract and entitled the plaintiff to sue without further demand.

The rule is, If before the time for performance of a contract has arrived one party announce to the other that he does not intend to perform his promise, the latter may treat the contract as broken,, and bring an action immediately against the former for the breach. It is not necessary that he should postpone his suit until the time-for performance has arrived.” 3 Am. & Eng. Enc. of Law, 904.

This rule is applicable to every class of contract, and that between a bank and its depositor is no exception. It applies to contracts of insurance, and the payment or tender of premiums by an insured is excused where the insurer announces that it will not perform its-contract (Shaw v. Republic Insurance Co., 69 N. Y. 286, citingFranchot v. Leach, 5 Cowen, 506; Traver v. Halsted, 23 Wend. 66); with respect to contracts of sale the avowal of the defendant" that he conld not, and would not, fulfill the contract on his part-rendered wholly useless any demand on the part of the -plaintiff,, or offer on his part to fulfill the contract ” (Sears v. Conover, 4 Abb. Ct. App. 179); -to a charter party, The law is settled that-an action for breach of contract will lie at once, upon a positive refusal to perform, although the time specified for performance has-. not arrived ” (Donovan v. Sheridan, 4 Misc. Rep. 433); and to a-contract for board, it being held that, where a boarder under contract: to board for a certain time refuses to remain, the boarding-house keeper is not obliged to tender performance, but may recover the profits she would have made had he remained, Crane v. Powell, 46 N. Y. St. Repr. 668; affirmed, 139 N. Y. 379. The rule is ' applied to a contract of marriage, where the defendant before, the time fixed for the fulfillment of his promise renounces the contract and declares that he will not perform it (Burtis v. Thompson, 42 N. Y. 246); arid to a contract for personal services, where before the day fixed for the commencement of the services the employer does an act inconsistent with the . continuance of the contract. In such a case ” an action may be immediately brought by the other party, and, of course, without averring performance or readiness to perform on his part.” “ The party renouncing his engagement cannot complain if the opposite party takes him at his word, and treats him as having broken the contract.” Howard v. Daly, 61 N. Y. 362.

■ In this case the contract of the defendant, the bank, was to pay on demand, either by presentation of a. check or otherwise, arid a notification to any party who might rightfully make the demand that the bank was not indebted to, the' drawer dispensed with the formality .of presentation of a check, or indorsement by the payee of a check then presented, as essential to an actiori by the depositor.

Judgment reversed and demurrer' overruled, with costs in the City Court and in this court.

McAdam and Bischoff, JJ., concur.

Judgment reversed and demurrer overruled, with.costs, in the City Court and in this court. .  