Majority
p. 391Henry Ahr, Respondent, v. Joel M. Marx, Appellant.
Headnote
Complaint on a note — it need not allege that a default at its maturity continued until the action thereon was commenced.A complaint in an action upon a promissory note, which alleges that at its maturity payment thereof was demanded and refused, need not further aV8i‘ • that the refusal continued down to the commencement of the action, and a demurrer interposed to it upon that ground is frivolous.
p. 392
Appeal by the defendant, Joel M. Marx, from a judgment of the-Supreme Court in favor of ■ the plaintiff, entered in the office of the clerk of the county of Hew York on the 7th day of June, 1899,. upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling his demurrer to the complaint as-frivolous, with' notice. of an intention to bring up for review upon such appeal an -order entered in said clerk’s office on the 6th day of June, 1899* upon which the judgment was entered.
J. M. Marx, for the appellant.
Henry A. Forster, for the respondent.
This action is upon a promissory note alleged to have been made-by the defendant and delivered to the plaintiff. It is also alleged' .that at maturity the note was presented for payment, and payment ■demanded and ."refused. The demurrer was interposed, because the plaintiff failed in addition to aver subsequent non-payment.. The-demurrer is frivolous. All that was necessary to aver was. a breach of the contract evidenced by the note. It was not necessary to- add that the breach continued down to the time- of the commencement, of the action.
The judgment overruling the demurrer as frivolous was right and should be affirmed, with costs. . ,
. Present—Van Brunt, P. J., Barrett, Rumsey, Patterson and O’Brien, JJ. .
Judgment, affirmed, with costs.