Ahr v. Marx

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. . ,

. Present—Van Brunt, P. J., Barrett, Rumsey, Patterson and O’Brien, JJ. .

Judgment, affirmed, with costs.