[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 55 The trial court did not find that Read, the original plaintiff, did produce the certificates upon the trial and offer to surrender them, properly indorsed, to the defendant, to be canceled. There is a statement to that effect contained in the proceedings upon the trial as stated in the case. But the findings show that the plaintiff's sister, Mrs. Rockwell, before this action was commenced, had taken possession of the certificates; that Read had commenced an action against her to recover possession of them; that that action was pending when this action was commenced; and that Read had obtained in that action copies of the certificates, but not the certificates themselves.
The case contains evidence tending to show, apart from the findings, that upon a former trial of this action Mr. Rockwell, having produced the certificates under a subpœna, the court directed their deposit with the clerk of the court, and that Read in a subsequent action against the clerk, to which Mr. Rockwell was not a party, recovered possession of them, and thus was able to produce them upon this trial. (See Read v. Brayton,143 N.Y. 342.) Thus the disputed title to the certificates between Read and his sister remains undetermined. We held upon the former appeal in this case that the risk of determining that title could not in this action be cast upon the defendant. (136 N.Y. 454.) These facts account for the absence of any finding by the trial court of *Page 58 the production of the certificates by the original plaintiff upon this trial, and his offer to indorse and surrender them to the defendant.
We cannot in view of the unanimous affirmance by the Appellate Division supply this finding — certainly not for the purpose of a reversal; but if we could do so, it is by no means clear under the facts stated that we ought to do it.
The judgment, therefore, should be affirmed upon the rule which we stated upon the former appeal in 136 N.Y. 454, in which the court, speaking by MAYNARD, J., said: "Construing the defendant's contract according to the rules of commercial law, it was not bound to pay the deposit except upon the production and surrender of the certificates properly endorsed." Thus the case of the plaintiffs fails, because their testator neither made the proper demand before he commenced his action, nor has been able to procure a finding that he made a proper surrender of the certificates upon the trial.
That a certificate of deposit is not due until actual demand has long been settled in this state. (Downes v. Phœnix Bank, 6 Hill, 297; Payne v. Gardiner, 29 N.Y. 146; Pardee v.Fish, 60 N.Y. 265; Howell v. Adams, 68 N.Y. 314; Boughton v. Flint, 74 N.Y. 476; Munger v. Albany City National Bank,85 N.Y. 581; Smiley v. Fry, 100 N.Y. 262.)
The plaintiffs insist that the commencement of the action was a sufficient demand. As between maker and holder a promissory note payable upon demand is due forthwith (Wheeler v. Warner,47 N.Y. 519; McMullen v. Rafferty, 89 N.Y. 457; DeLavallette v. Wendt, 75 N.Y. 579), and, therefore, a demand with tender of the note to the maker is not a condition precedent to the maturity of the cause of action. The note may be surrendered upon the trial.
But in this case the paper requires payment upon a specified condition, namely, "to his (the depositor's) order hereon," and the demand must correspond with the obligation of payment, and that requires the presentation of the certificate to the bank, properly indorsed, unless the bank should waive the *Page 59 indorsement. The action is at law, and the right of recovery had not accrued when it was commenced.
The judgment should be affirmed, with costs.
PARKER, Ch. J., HAIGHT, MARTIN, VANN and CULLEN, JJ., concur; BARTLETT, J., not sitting.
Judgment affirmed.