Kearns v. Citizens National Bank , 37 N.Y.S.2d 197 ( 1942 )

Plaintiff has appealed from an order of the County Court of St. Lawrence county dismissing the amended complaint on the ground it fails to state facts sufficient to constitute a cause of action. The action is in conversion. Plaintiff was one of three endorsers on a promissory note made by one McDonough held by defendant bank. At maturity the maker defaulted in payment and plaintiff paid the full amount. He made no demand upon the bank for the old note. Thereafter he instituted this action against the bank for conversion of the note. The complaint fails to show that plaintiff made any demand for the return of the note and there is nothing in the pleading to indicate that the bank’s lawful possession of the instrument was converted into an unlawful one. The complaint is entirely insufficient. Order unanimously affirmed, with ten dollars costs and disbursements. Present — Hill, P. J., Bliss, Heffernan, Sehenck and Poster, JJ.