The court of appeals held that this action could not be sustained as an action upon the check, because proof could not be made that all *629the" conditions upon which the authority of the bank to pay the check was made to depend, had been performed; one of the conditions being that the ■check should be indorsed by the drawer. 13 N. E. Rep. 775. After this decision, the plaintiff was allowed to amend her complaint, so as to change the ■cause of action, by alleging that the fund in the bank represented by the check had been assigned to her. The additional proof offered upon the new trial does not amount to an assignment. It amounts to an assertion on the part of Wilder that the check was good; that it was certified; that the money was in the bank; and that all the plaintiff had to do was to take the check, and go and get the money. In other words, the plaintiff was to get the money on the ■check as such; not because it operated, or was intended to operate, as an assignment of the fund. So words importing an assignment are stated by Lynch, the witness, to have been used when the sale was made, and there is nothing in the transaction which enables me to bring the case within the principle of Risley v. Bank, 83 N. Y. 318. Again, even if the language used by Wilder can be construed as an assignment, the bank should not be held liable to the plaintiff as assignee upon a mere production to it of the check, and a demand for the money, without some notice of the assignment. Eor these reasons the complaint must be dismissed, with costs.