
    AHR v. MARX.
    (Supreme Court, Appellate Division, First Department.
    November 24, 1899.)
    Bills and Notes—Pleading—Allegation op Nonpayment.
    A complaint on a note which alleges presentment and demand for payment at maturity, which was refused, is sufficient, without an averment of subsequent nonpayment.
    Appeal from special term, Hew York county.
    Action by Henry Ahr against Joel M. Marx. Judgment for plaintiff upon an order overruling a demurrer to the .complaint, and. defendant appeals.
    Affirmed,
    Argued before YAH BRUHT, P. J., and BABBETT, BUMSEY, PATTEKSOH, and O’BBIEH, JJ.
    J. M. Marx, in pro. per.
    Henry A. Forster, for respondent.
   PEB OUBIAM.

This action is upon a promissory note alleged to have been made by the defendant and delivered to the plaintiff. It is also alleged that at maturity the note was presented' for payment, and payment demanded and refused. The demurrer was interposed because the plaintiff failed in addition to aver subsequent nonpayment. The demurrer is frivolous. All that was necessary to aver was a breach of the contract evidenced by the note. It was not necessary to add that the breach continued down to the time of the commencement of the action.

The judgment overruling the demurrer as frivolous was right, and should be affirmed, with costs.  