Vogler v. Kirby — 18 N.Y. St. Rep. 287

Majority

p. 287

John Vogler v. John Kirby.

(City Court of New York, Special Term,

Filed October, 1888.)

Headnote

Pleading.

In an action on a note, a complaint which alleges that the action is on a promissory note, of which a copy is set out, is sufficient under section 534 of the Code, unless it contains a further allegation that the defendant made the note. The making is a material allegation that cannot be omitted.

Motion for judgment on demurrer, interposed by defendant to the complaint.

Chas. E. Hill, for motion; A. Pagelow, opposed.

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 13 Hun, 314 . The demurrer will therefore be sustained, with leave to the plaintiff to amend his complaint on payment of costs.