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Elkan v. Edwards

112 N.Y.S. 1107 Court N.Y. App. Term Decision date 1908-11-24 English

Delivered by SEABURY, J.

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ELKAN v. EDWARDS et al.
(Supreme Court, Appellate Term.
November 24, 1908.)

Headnote

Bills and Notes (§ 471*)—Actions—Pleadings—Statutoey Pbovisions.
•For other cases see same topic & § numbee in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
A complaint in an action on a note drawn under Code Civ. Proc. § 534, which omits any allegation that there is a specified sum due plaintiff from defendant, as expressly required by the section, is fatally defective.
[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 1469; Dec. Dig. § 471.*]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Hermann Elkan against Robert Edwards and another. A demurrer to the complaint was overruled, and defendants appeal.
Reversed, with leave to plaintiff to plead over.
Argued before GIEDERSLEEVE, P. J., and MacEEAN and SEA-BURY, JJ.
Rounds, Hatch, Dillingham & De Bévoise (Erancis Neagle, of counsel), for appellants.
Leopold W. Harburger, for respondent.

This action was brought to recover upon a promissory note. The complaint alleged the making of the note and set

p. 1108
out a copy thereof, the indorsement and delivery of the note for value to the plaintiff, the presentment upon maturity to the defendants at the place where the same was made payable, the demand for payment and the refusal thereof, the protest for nonpayment, notice of the presentment for demand and the nonpayment thereof, and then asks for judgment.

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The complaint was framed under section 534 of the Code of Civil Procedure, and is clearly demurrable. The omission from the complaint of any allegation to the effect that there is due to the plaintiff, from the defendants, a specified sum, renders it fatally defective, when the plaintiff attempts to frame his complaint under section 534 of the Code of Civil Procedure. Wright v. Deering, 2 Misc. Rep. 296 , 297, 21 N. Y. Supp. 929 .

The judgment appealed from is reversed, with costs to the appellants in this court and the court below, with leave to the plaintiff to plead over within five days upon payment of such costs. All concur.