Wells v. Simpson , 61 N.Y.S. 56 ( 1899 )

Gaynor, J.:

The moving papers disclose, and counsel for the defendant stated on the argument, that the object of opening the • default is to serve a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action. As in an action against the maker of a note the complaint does not need to state that the note was presented and payment demanded (Hills v. Place, 48 N. Y. 520), such demurrer would-be frivolous.

Motion denied with ten dollars costs.