No one appears for the defendant who is the appellant in this case. It appears to me, that the demurrer served by the defendant is palpably frivolous.
The complaint, in two several counts, alleges, that the defendant made two promissory notes; on the 14th of May, 1861, to the order of Bass Clark, each in the amount of $403.91. It alleges the presentment of each at the place specified in the notes, the refusal of payment, and notice to the indorser, which was unnecessary, as the action is solely against the maker, and as the indorsers are the plaintiffs. The complaint also states, that the plaintiffs are the owners and holders of these notes, and that no part thereof has been paid.
The defendant demurs, on the ground, first, that several causes of action have been improperly united, and, second, that the complaint does not state facts sufficient to constitute a cause of action. The plaintiffs made a motion for judgment, on the ground that the demurrer was frivolous, which motion was granted, and, on appeal to the General Term, the order was affirmed with costs. The order of the General *Page 24 Term should be affirmed with costs. I think the respondents should be allowed damages under section 307 of the Code of Procedure to the amount of ten per cent.
All affirm.
Judgment affirmed. *Page 25