
    John Vogler v. John Kirby.
    
      (City Court of New York, Special Term,
    
    
      Filed October, 1888.)
    
    Pleading.
    In an action on a note, a complaint which alleges that the action is on a promissory note, of which a copy is set out, is sufficient under section 534 of the Code, unless it contains a further allegation that the defendant made the note. The making is a material allegation that cannot be omitted.
    Motion for judgment on demurrer, interposed by defendant to the complaint.
    
      Chas. E. Hill, for motion; A. Pagelow, opposed.
   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 13 Hun, 314. The demurrer will therefore be sustained, with leave to the plaintiff to amend his complaint on payment of costs.  