
    Rowley v. National Bank of Deposit.
    
      (Supreme Court, General Term, First Department.
    
    March 31, 1892.)
    Banks—Failure to Pat Check—Pleading.
    In an action against a bank by a depositor, to recover damages for failure to pay a check drawn by him in favor of a third person, the complaint was fatally defective in failing to allege that the check had been indorsed by the payee.
    Appeal from special term, New York county.
    Action by Charles B. Rowley against the National Bank of Deposit for wrongfully refusing to pay a check drawn on it by plaintiff. A demurrer tcthe complaint was overruled, and defendant appeals.
    Reversed.
    Argued before "Van Brunt, P. J., and O’Brien and Ingraham, JJ.
    
      Robert W. Gilbert, for appellant. Herbert F. Andrews, for respondent..
   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 the said National Park Bank after having marked or caused to be marked upon the face thereof the characters “N. G.,”" 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 indorsed, by the payee, or that the defendant was bound to pay the same, and the court cannot assume that the check was so indorsed. Until it was indorsed 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 eus-tamers’ 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 reason 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 re, spondent to amend within 20 days upon payment of costs. All concur.  