
    Robert McWilliam, as Executor, Etc., of John McMillan, Deceased, Respondent, v. Charles W. Dayton, Appellant.
    Appeal by defendant from an interlocutory judgment, overruling a demurrer to a complaint.
    Frederic J. Swift, for appellant.
    Shepard & Prentiss (William H. Shepard, of counsel), for respondent.
   O’Dwyer, J.

The defendant demurs upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The complaint alleges the making arid delivery by the defendant of a promissory note on February 7, 1889, dated that day, whereby for value received, he promised to pay to the order of John S. McWilliam, on demand $5,000, with interest; the death of the payee, the probate of the last will and testament of the payee, the issuance of letters testamentary thereunder, and the transfer to the plaintiff before the commencement of the. action by such- executor while so acting. That no part of said note has been paid, except the sum of $2,500, on February 17, 1892, and the sum of $2,500, on June 15, 1895.

’. - These allegations .clearly set forth a cause of action in. the plaintiff upon a promissory note made by the defendant for the balance due thereon, and it follows that the demurrer was properly overruled.

It is further urged that the judgment is irregular inasmuch as the plaintiff, by notice of motion, moved to overrule the demurrer as frivolous and for judgment thereon and not for a trial of the issues of law created thereby.

We are of opinion that this contention cannot be sustained. An examination of the record demonstrates that the issues of law ■created by the demurrer were, without objection from the defendant, tried and determined; the usual order and interlocutory judgment entered thereon, and no motion made to correct the same.

The notice of motion was apparently treated as a notice of argument of the demurrer, and as no objection was made by the defendant to that coursé, the decision of the. court as upon a trial ■of the issues of law was within the power of the court-.

We find, however, that an error was committed in awarding $10 costs of motion, in addition to the costs of the trial, and for. that error the judgment must be modified by deducting therefrom the $10 costs of motion and as so modified affirmed, without costs.

McCarthy, J., concurs.

Judgment modified by deducting therefrom $10 costs of motion, and as so modified affirmed, without costs.  