I concur in the result. I think the question should be determined by the original complaint. While the complaint was not filed as the Code of Civil Procedure (§ 824) provides, it was before the court at Special Term and clearly shows that the note in suit was due.
Strictly, the complaint was not served, as the copy was not correct, and' the demurrers are not directed to a defect which in fact exists. While the defendants had a right to rely upon the copy served and, if misled, should not be prejudiced thereby, that does not require the court to determine a fictitious issue. .The trial court might well have declined to hear the case, but the-defendants *79elected to stand upon thei demurrers, knowing that the alleged defect did not exist in the original complaint; and I think they cannot now justly complain on this appeal that they were misled by the mistake.