
    Charles S. Lippner, Respondent, v. The Century Bank of the City of New York, Appellant.
    First Department,
    December 2, 1910.
    Pleading — action against bank which, paid check after payment stopped by drawer— complaint not stating cause of action — trial — erroneous refusal to dismiss complaint.
    A complaint which alleges that the plaintiff’s assignor drew a post-dated check upon the defendant bank, and that the defendant paid' the same although the drawer notified defendant before maturity not to pay it does not state a cause of action in the absence of allegations that the drawer'was a depositor with the defendant, or that it held any funds of his, or paid the check out of funds belonging to him.
    The court on motion should dismiss such complaint at the opening of the trial, and its error in failing to do so is not cured by the drawer’s testimony that he was a depositor if it was received under objection and exception and without an attempt to amend the complaint.
    Appeal by the defendant, The Century Bank of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of June, 1910, upon the verdict of a jury, and'also from an order entered in said clerk’s office on the 13tli day of June, 1910, denying the defendant’s ffiotion for a new trial añade upon ■ the minutes.
    
      Philip K. Walcott, for the appellant.
    
      Myron Sulzberger, for the respondent.
   Scott, J.:

The defendant appeals from a judgment upon a verdict.

The complaint alleges that on a certain date one Joseph Gottlieb, plaintiff’s assignor, drew a post-dated check upon defendant, and that before the check by its terms became payable, said Gottlieb notified defendant not to pay it, notwithstanding which defendant did pay it. The complaint does not allege that Gottlieb was a depositor with defendant, or that defendant held any funds of his, or that the check was paid out of any funds belonging to Gottlieb. Hence, no cause of action was stated against the defendant. A motion to dismiss the complaint on this ground was duly made at the opening of the trial and denied, whereupon the defendant excepted. The denial, of this motion was error, which was not cured by Gottlieb’s testimony that he was a depositor, because that evidence was received under objection and exception, and no attempt had been made to amend the complaint. The reception of this evidence also constituted error. As the errors referred to are fundamental, it is unnecessary to consider any of the other questions discussed upon, the briefs. ■

The judgment and order appealed from are reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  