
    SUPREME COURT.
    William B. Jaudon and Charles Jaudon agt. Daniel S. Read, impleaded, &c.
    
    Where there is no evidence produced on the trial dispensing with the notice of demand and non-paymentto the drawer of a dishonored oheeTc, and no such demand and notice having been proved, the plaintiffs are not entitled to recover upon it against the drawer.
    
      New York Special Term, December, 1866.
    Motion for a new trial. This was an action against the drawer of a check. The check was presented to the bank upon which it was drawn and payment refused, but no notice of non-payment was ever given to the drawer.
    On the trial, to excuse the non-service of notice of protest, the plaintiffs each testified that after the commencement of this action the defendant stated in their presence that he stopped the payment of the check.
    The defendant testified that he did not say so, and that he did not in fact stop its payment.
    The jury found a verdict for the plaintiffs.
    Iba D. Warren, counsel for the defendant,
    
    moved to set aside the verdict and for a new trial, on the ground that there was no evidence which would sustain the verdict of the jury.
    That it was immaterial what defendant said; the fact was sworn to by him that he did not stop the payment of the check. That he did. not in fact stop the payment of the check, repelled any presumption that might have arisen from what he said, as the plaintiffs had not in any way acted on it, nor been misled by it. That there was no dispute about the fact, whatever there might be about what the defendant had said.
    E. M. Wight, for plaintiffs,
    
    claimed that there was conflicting evidence upon the question whether or not the defendant stopped the payment of the check, and that their finding was conclusive.
   Mullen, J.

Motion for a new trial granted, on the ground that there is no evidence in the case dispensing with the notice of demand and non-payment, to Bead.  