#### Frederic Goodwin, Respondent, *v.*Andrew J. Cobe, Appellant.

(City Court of New York, General Term,

August, 1898.)

Bank check — Complaint — An action will not lie against the drawer unless notice to him of presentment and nonpayment are alleged.

The complaint in an action on a bank check, against the drawer, must affirmatively allege notice to him of the' presentment of the check for payment and of its nonpayment, or it is demurrable as not stating facts sufficient to constitute a cause of action.

Appeal from judgment and order directing judgment on account of the frivolousness of defendant’s demurrer to the complaint.

Philip Carpenter, for appellant.

E. S. Griffing, for respondent.

Schuchman, J.

The complaint sets up two1 causes of action on bank checks separately. The defendant .demurs to each on the .ground that the complaint does not state facts sufficient to constitute a cause of action. § 492, Code Civ. Pro. Plaintiff gives notice of motion for an order striking out the demurrer as frivolous and for judgment. The motion was-granted-and the order appealed from, entered thereon.

The demurrer is not frivolous. Cook v. Warren, 88 N. Y. 37.

It is essential in an action on a bank check to allege *“*Notice •of presentment and nonpayment to the drawer.” The drawee was first to be resorted to, and the drawer came in aid only, on the drawee’s default. Therefore, the check must he presented for payment, before the drawer could he made liable. Judd v. Smith, 3 Hun, 190; Harker v. Anderson, 21 Wend. 372; Conkling v. Gandall, 1 Keyes, 228.

In the last-mentioned case section 162 of the old Code, which ' is in substance identical to. section 534 of the Code of Civil Procedure, received consideration and construction.

It thus appears clearly, that notice of presentment and nonpayment of a check to the drawer is a prerequisite (identical to a condition precedent) to the plaintiff’s right to recover on such a check. To entitle the plaintiff to recover he must show perform*390anee of a condition precedent, or a valid excuse for its nonperformance. If there has been no performance, and the plaintiff intends to rely on the excuse, in that case the complaint must state the facts on which the plaintiff relies as an excuse, and not state that he duly performed the condition; for under an allegation of performance, evidence in excuse of nonperformance is not admissible. Oakley v. Morton, 1 Kern. 33; Holmes v. Holmes, 5 Selden, 525.

In the second cause of action of the complaint there is no excuse whatever alleged for the omission of the notice of presentment and nonpayment, there is a simple allegation that $100 .has been paid on account; for that reason the cause of actipn in the second count is defectively stated and the demurrer to each of the causes of action is well taken.

The complaint is further defective in failing t> allege that the checks were indorsed by the payee. Rowley v. National Bank of Deposit, 63 Hun, 550; Eichner v. Bowery Bank, 24 App. Div. 63; Lynch v. First National Bank, 107 N. Y. 179.

The judgment and order appealed from are reversed, with costs,, and the motion to strike out the demurrer as frivolous is denied, with costs.

Olcott, J., concurs.

Judgment and order reversed, with costs. Motion denied, with costs.