Ahr v. Marx

Appellate Division of the Supreme Court of the State of New York

Decided November 15, 1899

Appellate Division of the Supreme Court of the State of New York · decided 1899-11-15

Appeal by the defendant, Joel M. Marx, from a judgment of the-Supreme Court in favor of ■ the plaintiff, entered in the office of the clerk of the county of Hew York on the 7th day of June, 1899,. upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling his demurrer to the complaint as-frivolous, with' notice. of an intention to bring up for review upon such appeal an -order entered in said clerk’s office on the 6th day of June, 1899*…

Decided 1899-11-15

Per Curiam :

¶1This 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.

¶2The judgment overruling the demurrer as frivolous was right and should be affirmed, with costs. . ,

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

¶4Judgment, affirmed, with costs.