Cluff v. Day

The Superior Court of New York City

Cluff v. Day

28 Jones & S. 306, 42 N.Y. St. Rep. 960, 60 N.Y. Sup. Ct. 306

CourtThe Superior Court of New York City

DecidedJanuary 11, 1892

StatusPublished

This text of 28 Jones & S. 306 (Cluff v. Day) is published on Counsel Stack Legal Research, covering The Superior Court of New York City primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cluff v. Day, 28 Jones & S. 306, 42 N.Y. St. Rep. 960, 60 N.Y. Sup. Ct. 306 (N.Y. Super. Ct. 1892).

Pincite

Opinion

Per Curiam.

Defendants’ exceptions were ordered to be heard in the first instance at general term.

The complaint neither states the facts conferring jurisdiction upon the surrogate nor alleges that the decree and amending order referred to in the complaint were duly made, and in this is bad, § 532 Code Civil Procedure.

While as to defendant Thompson it might not be improper to amend the pleading so as to conform to the proof, as the decree was not put in evidence against Day, it is best that the exceptions should be sustained and that there should be a new trial—costs to abide the event. Ordered accordingly.

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Per Curiam.

Defendants’ exceptions were ordered to be heard in the first instance at general term.

The complaint neither states the facts conferring jurisdiction upon the surrogate nor alleges that the decree and amending order referred to in the complaint were duly made, and in this is bad, § 532 Code Civil Procedure.

While as to defendant Thompson it might not be improper to amend the pleading so as to conform to the proof, as the decree was not put in evidence against Day, it is best that the exceptions should be sustained and that there should be a new trial—costs to abide the event. Ordered accordingly.

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Bluebook (online)

28 Jones & S. 306, 42 N.Y. St. Rep. 960, 60 N.Y. Sup. Ct. 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cluff-v-day-nysuperctnyc-1892.