Majority
p. 99Vogle v. Kirby. (City Court of New York, Special Term. October, 1888.)
Headnote
Contracts—Action—Pleading—Execution.A complaint simply alleging that the action is on an instrument for the payment of money only, of which a copy is given, but not alleging the making of the instrument by defendant, is demurrable under Code Civil Proc. N. T. § 534, which provides that “ where a cause of action * * * is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and state that there is due to him thereon, from the adverse party, a specified sum which he claims. ”
Action by Yogle against Kirby on a written instrument. Defendant demurred to the complaint, and plaintiff moves for judgment. Code Civil Proc. H.T § 534, referred to in the opinion, provides that “where a cause of action, defense, or counter-claim is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and state that there is due to him thereon, from the adverse party, a specified sum which he claims.”
Charles E. Hall, for motion. A. Paigelow, contra.
If the complaint had alleged the making of the note by the defendant, it would have been sufficient under section 534 of the Code, but, this essential allegation having been omitted, it is defective. Simply alleging that the action is on an instrument for the payment of money only, of which a copy is given, affords the defendant no opportunity of putting in issue the execution of the instrument. See Broome v. Taylor, 13 Hun, 341 . The demurrer will therefore be sustained, with leave to the plaintiff to amend his complaint; $10 costs to defendant to abide the event.