
    Henry J. Newton, App’lt, v. Henry H. Browne, Resp’t.
    
      (New York City Court, General Term,
    
    
      Filed November 27, 1893.)
    
    Pleading—Demurrer.
    The complaint, in an action to recover an indebtness, is demurrable if it fails to aver the non-payment of the alleged debt.
    
      Appeal from an interlocutory judgment overruling a demurrer.
    
      B. W. Brenen, for app’lt; 27. Huffman Browne, for resp’t.
   McCarthy, J.

The complaint in this action was demurrable. It fails to allege the non-payment of the alleged debt of $100. This is an essential allegation. “ See Lent v. N. Y. & H. R. Co., 130 N. Y., 510, 511, 512 and 513; 42 St. Rep., 592.

The judgment and order overruling demurrer should be reversed, and demurrer sustained, with costs, with leave to the plaintiff to serve an amended complaint on payment of twenty dollars costs and the costs of this appeal.

Yah Wyck, J., concurs.  