
    Lynch v. First Nat. Bank of Jersey City.
    
      (Circuit Court, New York County.
    
    October 29, 1888.)
    1. Negotiable Instruments—Checks—Assignment oe Fund. .
    Evidence that the drawer of a check payable to bis own order gave it, without indorsement, to plaintiff, asserting that it was good, that it was certified, that the money was in the bank, and that all plaintiff had to do was to take the check and go and get the money, does not show an assignment of the fund represented by the check.
    
    2. Same—Notice—Action by Assignee.
    Assuming that the transaction amounted to an assignment, still defendant cannot be held liable to plaintiff, as assignee, on a mere production of the check and, demand for payment, without any notice of the assignment.
    Defendant, the First National Bank of Jersey City, had among its depositors one F. F. Wilder, who on June 1, 1883, drew his check, dated on that day, to his own order, for $500; and, at his request, the bank certified- it on the same day, making it payable at the American Exchange National Bank, New York. Wilder bought a diamond from the plaintiff, Theresa Lynch, giving her in payment therefor this check, but without indorsing it. Shortly afterwards the check was presented by plaintiff’s son at the American Exchange National Bank, in New York, for payment, which was refused. It does not appear, however, that anything was then said to that bank in relation to the ownership of the check, or that plaintiff claimed to be entitled to-it as owner or otherwise. Afterwards the check reached defendant through the clearing-house, and its payment was again refused; whereupon this action was brought on the check. There was a verdict and judgment for plaintiff, and defendant appealed to the general term of the supreme court, where the judgment was affirmed, (36 Hun, 644.) and defendant appealed to the-court of appeals, which reversed the judgment; holding that plaintiff could not recover in an action on the check, as it was not indorsed by the payee, and ordered a new trial. 13 N. E. liep. 775. The present is a motion to dismiss, the amended complaint, made at the new trial.
    
      Abram Kling, for plaintiff. Marsh, Wilson & Wallis, for defendant.
    
      
       holder of a bank-check has no right of action on the check against the hank, although there are funds of the drawer in the bank sufficient to pay the check, unless the bank has accepted the check in the hands of the holder. Bank v. Shoemaker, (Pa.) 11 Atl. Rep. 804. No suit in equity can he maintained upon the mere possession and production of the check by the payee; there must he some equitable circumstance, as the insolvency of the drawer, and the like. Schuler v. Bank, 27 Fed. Rep. 424, and note.
    
   Lawrence, J

The court of appeals held that this action could not be sustained as an action upon the check, because proof could not be made that all the" conditions upon which the authority of the bank to pay the check was made to depend, had been performed; one of the conditions being that the ■check should be indorsed by the drawer. 13 N. E. Rep. 775. After this decision, the plaintiff was allowed to amend her complaint, so as to change the ■cause of action, by alleging that the fund in the bank represented by the check had been assigned to her. The additional proof offered upon the new trial does not amount to an assignment. It amounts to an assertion on the part of Wilder that the check was good; that it was certified; that the money was in the bank; and that all the plaintiff had to do was to take the check, and go and get the money. In other words, the plaintiff was to get the money on the ■check as such; not because it operated, or was intended to operate, as an assignment of the fund. So words importing an assignment are stated by Lynch, the witness, to have been used when the sale was made, and there is nothing in the transaction which enables me to bring the case within the principle of Risley v. Bank, 83 N. Y. 318. Again, even if the language used by Wilder can be construed as an assignment, the bank should not be held liable to the plaintiff as assignee upon a mere production to it of the check, and a demand for the money, without some notice of the assignment. Eor these reasons the complaint must be dismissed, with costs.  