I think the learned trial justice should also have dismissed the complaint upon the motion reserved. Neither the original nor the renewal note was duly presented. The necessary condition to an indorser’s liability did not, therefore, exist. On this we are agreed; and yet it is proposed to grant a new trial on the theory that the jury may find a waiver of presentment of the first note and hold the defendants liable thereon. The first objection is that waiver is not pleaded, and I think it is the law of this State that waiver may not be shown under a plea of presentment and notice. (Ullman v. Jacobs, 86 Hun, 186; Congress Brewing Co., Ltd., v. Habenicht, 83 App. Div. 141; Clift v. Rodger, 25 Hun, 39; Bird v. Kay, 40 App. Div. 533.) The prevailing opinion holds that acceptance of a renewal note is a waiver of any further steps to hold the indorser of the original note, and that the action may be maintained upon the original note without regard to the other allegations of the complaint and the subsequent acts of the parties. None of the cases cited by my brother Putnam seem to me authority for his contention. In none of them is it held that a renewal note in and of itself is a waiver of presentment of the original, and notice of non-payment. Cady v. Bradshaw (116 N. Y. 188), Sheldon v. Horton (53 Barb. 23), and Leffingwell v. White (1 Johns. Cas. 99) are all cases where it is held, upon the evidence of negotiation between the parties, that there was a waiver. In Leonard v. Gary (10 Wend. 504) it is held .that a promise to pay estopped the indorsers to allege want of demand and notice. In National Hudson River Bank v. Reynolds (57 Hun, 307) the renewal note was not accepted. These cases, with' Leary v. Miller (61 N. Y. 488), are decided on the principle that where an indorser induces by promises to pay or by other representations, a holder of a promissory note to forbear to present it for payment, he cannot thereafter allege the failure to present for the purpose of escaping liability. That is not this case; nothing which the indorsers did induced the holder to omit presentation; this was due to a fault of plaintiff’s banking agent in Milwaukee. To hold that a renewal note, where the indorsers still continue a conditional liability, makes them liable absolutely on the first note, is to make a new contract between the parties contrary to their obvi*543ous intent. The agreement was that the indorsers should be continued with an indorser’s liability. The parties so understood it. The plaintiff attempted to make demand on the renewal note, but, apparently through an error in banking channels, failed. No desire on our part to accomplish our own notion of justice warrants unsettling the law of negotiable paper or making a contract to which the parties have never consented.
I think, therefore, that the motion to dismiss the complaint, which was reserved by the court pending submission to the jury of the question of the primary liability of the defendants, should have been granted, and that the complaint should be dismissed.
Jenks, P. J., concurs.
Order affirmed, without costs.