Opinion
December 2, 1910.
Philip K. Walcott, for the appellant.
Myron Sulzberger, for the respondent.
The defendant appeals from a judgment upon a verdict.
The complaint alleges that on a certain date one Joseph Gottlieb, plaintiff's assignor, drew a post-dated check upon defendant, and that before the check by its terms became payable, said Gottlieb notified defendant not to pay it, notwithstanding which defendant did pay it. The complaint does not allege that Gottlieb was a depositor with defendant, or that defendant held any funds of his, or that the check was paid out of any funds belonging to Gottlieb. Hence, no cause of action was stated against the defendant. A motion to dismiss the complaint on this ground was duly made at the opening of the trial and denied, whereupon the defendant excepted. The denial of this motion was error, which was not cured by Gottlieb's testimony that he was a depositor, because that evidence was received under objection and exception, and no attempt had been made to amend the complaint. The reception of this evidence also constituted error. As the errors referred to are fundamental, it is unnecessary to consider any of the other questions discussed upon the briefs.
The judgment and order appealed from are reversed and a new trial granted, with costs to appellant to abide the event.
INGRAHAM, P.J., McLAUGHLIN, CLARKE and DOWLING, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.