Opinion
November Term, 1899.
J.M. Marx, for the appellant.
Henry A. Forster, for the respondent.
Present — VAN BRUNT, P.J., BARRETT, RUMSEY, PATTERSON and O'BRIEN, JJ.
This action is upon a promissory note alleged to have been made by the defendant and delivered to the plaintiff. It is also alleged that at maturity the note was presented for payment, and payment demanded and refused. The demurrer was interposed, because the plaintiff failed in addition to aver subsequent non-payment. The demurrer is frivolous. All that was necessary to aver was a breach of the contract evidenced by the note. It was not necessary to add that the breach continued down to the time of the commencement of the action.
The judgment overruling the demurrer as frivolous was right and should be affirmed, with costs.
Judgment affirmed, with costs.