The complaint (verified May 5, 1888) alleges that between February 1 and April 10, 1888, the plaintiff sold and delivered merchandise to defendant upon credit of 30 days; that the whole amount has become due, by averaging dates of delivery, and that there is now due to plaintiff from defendant the amount claimed. The defendant demurred for insufficiency, and from the order granting judgment thereon, and from the judgment entered accordingly, he presents this appeal. It is true, as appellant’s counsel claims, that a complaint must fall before a demurrer, when it sets forth a complete cause of action, and at the same time a perfect defense thereto. But such is not the comjdaint in the case at bar. Here a present cause of action is alleged, and, in addition, facts as to credit from which the probable existence of a partial defense might be inferred. This is not enough to impair the legal efficiency of the complaint. The matter of allowing defendant to plead over was in the discretion of the court below, and the utter absence of any suggestion of a present meritorious defense forbids our interference. The demurrer was clearly frivolous; and, a frivolous pleading being evidence of bad faith, leave to plead over or amend should not ordinarily be granted. Youngs v. Kent, 46 N. Y. 672-674. The order and judgment appealed from should be affirmed, with costs.
Browne and McGown, JJ., concur.