Elkan v. Edwards ( 1908 )

SEABURY, J.

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