
    Appleby v. Elkins.
    Form of complaint on a promissory note by indorsee against maker, approved on demurrer.
    On overruling a demurrer to a complaint as frivolous, leave to answer will not be given, without an affidavit of merits.
    December Special Term, 1849.
    Demurrer to a complaint. The statement of the complaint was as follows:
    “That the defendant on the first day of August, 1849, made his promissory note in the words following:—‘New York, August 1st, 1849. Two months after date, for value received, I promise to pay to the order of Noah Ripley, one hundred and sixty dollars. G. B. Elkins.’ And delivered the same to the said Noah Ripley, who thereupon indorsed the same to the plaintiff; that the said defendant did not pay the said note when it became due, and that the defendant is indebted to the plaintiff upon the same note in the sum of $160, besides interest.”
    The defendant demurred, for the following causes :
    “ 1st. That the complaint does not show that the plaintiff is the lawful holder of the note on which the action is brought 2d. It is not averred that the said note is due. 3d. The complaint does not state facts sufficient to constitute a cause of action.”
    The plaintiff moved for judgment, on the ground that the demurrer was frivolous.
    
      C. E. Appleby, for the plaintiff.
    
      J. N. Balestier, contra.
   The Court, (Sandford, J.,)

held the demurrer to be frivolous, and directed judgment for the plaintiff. There being no affidavit of merits, leave to answer was refused.  