Wells v. Simpson

Decided December 15, 1899

New York Supreme Court · decided 1899-12-15

Motion by defendant to open bis default to plead, in order that he may serve a demurrer to the complaint. The action is against the defendant as maker of a promissory note payable at a bank. There is no allegation that the note was presented and payment demanded.

Relies on Hills v. . Place

Decided 1899-12-15

Gaynor, J.:

¶1The 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.

¶2Motion denied with ten dollars costs.