
    In Special Term —
    Spencer, J. presiding.
    GEORGE VILLIERS vs. HENRY LEWIS.
    To form a complete cause of action, it should appear from the petition not only that the defendant made a promise, hut that he has broken it.
    Piajntiff must show something due to him, and how much, before defendant can be required to deny or avoid under oath.
    This was a demurrer to petition for insufficient statement of cause of action.
    
      The petition alleged, that the defendant, by promissory note, dated the 2nd day of March, 1854, promised to pay the plaintiff in seventy-five days after date$438.93, a copy of which was thereto annexed; wherefore plaintiff claimed judgment on said note against the defendant for said sum, with interest from the 10th March, 1854. The petition was accompanied by a copy of the note. Cause of demurrer, that petition does not set forth sufficient facts to constitute a cause of action.
    Fox & French for plaintiff.
    Worthington & Matthews, for defendant.
   Per Cur:

The objection is well taken. To constitute a complete cause of action, it should appear not only that the defendant made a promise, but that he has broken it. Such is the rule at common law; and such is the rule under the Code. The plaintiff must show that something, and how much, is due him, before the defendant can be called upon to deny, or avoid, under oath.

Demurrer sustained, and leave given plaintiff to amend.  