Aldrich v. Lapham

6 How. Pr. 129

• Court: New York Supreme Court
• Decided: December 15, 1850
• Status: Published

Opinion

Sill, Justice.

This application must be denied. The rule applies now as heretofore, that the judgment must be “ secundum allegata et prolataThe complaint must state the facts which entitle the plaintiff to his judgment, and where they are not admitted, which as against infant defendants, is never the case, they must be sustained by legitimate proof. In the present case both these' essentials are wanting. The complaint alleges that the infant defendants have an interest in the mortgaged premises, but it does not state what that interest is, whether it is paramount to the interest mortgaged or subordinate to it. The latter must be in some form shown by the complaint to justify the judgment prayed. If the complaint were sufficient in this particular, proof to show the paramount interest and rights of the plaintiff is wanting, and on both grounds the motion must fail.

The cause must stand over, to give.the plaintiff an opportunity to move for leave to amend the complaint and if notice of such motion is not served within twenty days, the complaint must be dismissed with costs to the defendants who have appeared.