
    Charles B. Rowley, Resp’t, v. The National Bank of Deposit, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    Pleading—Action for failure to pat check.
    A complaint in an action against a bank by a depositor for failure to pay a check drawn by him to the order of a third person, which fails to state that the check was endorsed by the payee, fails to state facts sufficient to constitute a cause of action.
    Appeal from interlocutory judgment overruling demurrer.
    
      B. W. Gilbert, for app’lt; H. F. Andrews, for resp’t
   Ingraham, J.

The complaint alleges that the check described in the complaint was deposited in the National Park Bank of the city of New York to the credit of B. B. Stimpson on the 4th of August, 1891; that it was presented to the defendant by such National Park Bank for payment on that or the following day, and that at the time when the same was so presented for payment, the plaintiff had on deposit with said defendant an amount largely in excess of the amount of such check, and that when said check was presented for payment the defendant refused payment thereof although well knowing that it was indebted to plaintiff in an amount in excess thereof, and that said defendant returned said check to ihe said National Park Bank after having marked or caused to be marked upon the face thereof the characters “ N. Gr.” in blue pencil, and that such letters or characters when written conspicuously upon the face thereof by bankers, etc., mean “ not good,” and that the drawer thereof has not a sufficient sum on deposit to warrant the payment thereof There is no allegation in this complaint that the check was endorsed by the payee, or that the defendant was bound to pay the same; and the court, cannot assume that the check was so endorsed. TJntil it was endorsed the defendant was not bound to pay it, and before there can be any cause of action against the defendant because of its refusal to pay the check the plaintiff must allege that the defendant was under a legal obligation to pay the same.

There is no allegation in the complaint that the check was presented for certification ; nor do we know of any rule of law that requires the bank to certify its customers’ checks, or makes it liable for a refusal to certify.

Without passing upon the question as to the liability of the defendant for damages for failing to pay a customer’s check, we think for the reasons above stated that the demurrer should have been sustained.

The judgment should, therefore, be reversed and the demurrer sustained, with costs, and with leave to the respondent to amend within twenty days upon payment of costs.

Van Brunt, P. J., and O’Brien, J., concur.  