
    SYLVANUS JUDD and another, Respondents, v. CHAUNCEY A. SMITH, Impleaded with WALTER MURRAY, Appellant.
    Oheek— drawer of, is not liable without presentment and notice.
    
    An action will not lie on a bank check against the drawer until after notice of presentment and non-payment.
    
      IbwJcer v. Anderson (21 Wend., 372) followed.
    Appeal by the defendant, Smith, from an order giving plaintiff judgment on account of the frivolousness of a demurrer to the complaint.
    
      L. B. Bunnell, for the appellant,
    cited Harker v. Anderson (21 Wend., 383), Boehm v. Sterling (7 T. R., 419), Cruger v. Armstrong (3 John. Cas., 5), Merchants’ Bank v. Spicer (6 Wend., 443).
    
      A. Prentice, for the respondents,
    cited Gough v. Staats (13 Wend., 549), Mohawk Bank v. Broderick (10 id., 304), Murray v. Judah (6 Cowen., 490), Bowen v. Newell (8 N. Y., 190).
   Westbrook, J.:

The complaint contains two causes of action, and each separately stated. The first is upon a check, dated Jersey City, August 17, 1872, drawn by the defendant, Smith, for the sum of $1,407, upon the Union Bank, and payable to the order of the defendant, Walter Murray. The second is upon a similar check of $1,320, dated Jersey City, August 24, 1812. Copies of both checks are given in the pleading, and they are averred to have been indorsed The complaint further states that.the checks were presented for payment, and payment was refused, whereupon they were protested for non-payment, and notice of demand of payment, non-payment and protest given to the defendant, Murray. The complaint fails to state that notice was given to the defendant, Smith, but claims a specified sum as due from both defendants to the plaintiffs on each check, for both of which specified sums they ask judgment, with interest and costs. The defendant, Smith, demurred to the complaint for the alleged reason that it did not state facts sufficient to constitute a cause of action.” Motion was made by plaintiffs for judgment, on account of the frivolousness of the demurrer, which was granted at the Special Term; and from such order and judgment the defendant, Smith, appeals. by the defendant, Murray, and delivered for value to the plaintiffs.

The appeal presents the single question, whether the complaint should have averred notice of the presentment and non-payment of the checks to the drawer.

In Harker v. Anderson it was held, Judge Co wen delivering the opinion, that “ an action does not lie on a bank check against the drawer, until after notice of presentment and non-payment.”

Edwards, in his Treatise on Bills and Promissory Notes, says: :£It is clear, also, that in an action against the drawer of a check, the holder cannot, in general, recover unless he shows that it has been presented for payment and dishonored, and that notice of nonpayment has been properly given.

Whilst there is some confusion in the cases, as to the time within which a check payable on demand should be presented, there seems to be none in regard to the necessity of a demand of payment, a refusal to pay, and a' notice thereof to the drawer, before he can be made liable by suit. If, therefore, the complaint in an action upon a written instrument, should state every fact which it is necessary to prove upon the trial to hold the parties to it, then this demurrer was well taken. The case of Conkling v.

Gandall, is directly in point to prove the affirmative of this proposition, and for the reasons therein given the complaint in this action must be held insufficient and the demurrer well taken.

The order appealed from should be reversed, with costs.

Davis, P. J., and Daniels, J., concurred.

Order reversed, with costs. 
      
       21 Wend., 372.
     
      
       Page 396.
     