Vogle v. Kirby

City of New York Municipal Court

Vogle v. Kirby

4 N.Y.S. 99, 18 N.Y. St. Rep. 287

City of New York Municipal Court·Decided October 15, 1888·Published·Cited by 1 cases

Opinion

McAdam, C. J.

If the complaint had alleged the making of the note by the defendant, it would have been sufficient under section 534 of the Code, but, this essential allegation having been omitted, it is defective. Simply alleging that the action is on an instrument for the payment of money only, of which a copy is given, affords the defendant no opportunity of putting in issue the execution of the instrument. See Broome v. Taylor, 13 Hun, 341. The demurrer will therefore be sustained, with leave to the plaintiff to amend his complaint; $10 costs to defendant to abide the event.

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McAdam, C. J.

If the complaint had alleged the making of the note by the defendant, it would have been sufficient under section 534 of the Code, but, this essential allegation having been omitted, it is defective. Simply alleging that the action is on an instrument for the payment of money only, of which a copy is given, affords the defendant no opportunity of putting in issue the execution of the instrument. See Broome v. Taylor, 13 Hun, 341. The demurrer will therefore be sustained, with leave to the plaintiff to amend his complaint; $10 costs to defendant to abide the event.

Vogle v. Kirby, 4 N.Y.S. 99, 18 N.Y. St. Rep. 287 (N.Y. Super. Ct. 1888).

Pincite

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Opinion

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