Butchers & Drovers' Bank v. Jacobson

15 Abb. Pr. 218, 24 How. Pr. 204

Opinion

By the Court.

*—Monell, J.

I cannot distinguish this case in principle from Prindle a. Caruthers (15 N. Y., 425), which has since been followed in this court in-Price a. McClave, decided by the general term in December, 1860. In Prindle a. Carutiers, the complaint contained little, if any thing, more than is contained in the complaint in this case. It did, however, allege that the defendant made the contract: there is no such allegation in this complaint. But, looking at the section of the Code under which this complaint was' drawn, in a spirit of liberal construction, with the light shed upon it by the court in Prindle a. Caruthers, I cannot believe the Legislature intended to give to it any other effect than its plain unequivocal language imports. There is no doubt the Legislature can prescribe the forms of pleading, and they can dispense with the form altogether. They can declare what shall be sufficient, and when they have declared that “ it shall be sufficient for a party to give a copy of the instrument, and to •state that there is due to him thereon from the adverse party a specified sum which he claims,” it leaves no room for doubt that they intended to allow this seemingly informal and incomplete mode of pleading. In enacting the Code, it was designed to, as it does in terms, abolish all the forms of pleadings as theretofore existing, and to allow such only as are therein prescribed. (Cbó?6, § 140.) In following those forms, the pleader is protected by an authority higher than the court; and in my judgment, it is better to partake of the spirit of reform which the Code professes to have worked in the system of pleading, than by cavilling to interrupt its harmonious action. I cannot entertain a doubt that the complaint in this action was perfectly intelligible to the defendants, and that without the aid of lawyers they fully understood what they were sued for. Indeed, it was more apparent to their comprehension than if its meaning had been covered up and concealed under the useless verbiage of the old forms.

The complaint, we think, contains a sufficient statement of the cause of action, and it being upon an instrument for -the payment of money only, was strictly within section 162 of the Code, and both upon reason and authority must be sustained.

The order appealed from must be affirmed, with costs.

Present, Bosworth, Ch. J., Monell and Barbour, JJ.