(dissenting.) I concur in the opinion of the , presiding justice so far as relates to the necessity of an averment in the complaint, that a note payable at a particular place, had been demanded at that place, in order to charge the indorser. But I do not concur in the opinion that such averment is sufficiently made out by the words used in this complaint.
In Gay v. Paine, (5 How. Pr. Rep. 107,) such a position *12is distinctly laid down, and in Adams v. Sherrill, (14 id. 297,) it was followed, Paige, J. however expressing his dissatisfaction with it.
The 162d section of the code says: “ In pleading the performance of a condition precedent in a contract, it shall not he necessary to state the facts showing such performance, hut it'may he stated generally that the party duly performed all the conditions on his part,” &c.
The conditions here referred to are conditions stated in the contract to be performed on the one part, or which the other party is also required to perform on his part; hut the section does not apply to those remedies which the law imposes, to enable a party having a claim against another to enforce that claim.
Even conceding that the section referred to applies to the averments necessary of a demand of payment of a promissory note, and notice of non-payment, still the averment in this complaint is not a compliance with that section. The words used in the complaint are that the “ notes were duly presented for payment to the matters thereof.” This is not an averment of any demand at the place, or of performance of the condition necessary to enforce the indorser’s liability. Had the averment been “that the note was duly presented for payment,” it might have come within Justice Gridley’s decision in Gay v. Paine, (5 How. 107;) hut here the plaintiffs aver a demand of the maker. This was not the condition. The condition was a demand at the place of payment, and it was immaterial whether the maker was there or not. Suppose, in proof of that averment, it was shown that the note was presented to the maker in New York and properly demanded of him, it would not be argued that such presentment was sufficient; and yet that would he full proof of the allegation in the complaint.
I concur fully with Woodruff, J. in Graham v. Machado, (6 Duer, 514,) as to the construction of the 162d section of *13the code, and the impropriety of applying it to the case of •the demand of payment of a promissory note. The order at special term should be affirmed.
[New York General Term, September 16, 1861.Order reversed.
Clerke, Ingraham and Leana/rd, Justices.]