Cluff v. Day

Superior Court of New York

Cluff v. Day

18 N.Y.S. 954

CourtThe Superior Court of the City of New York and Buffalo

DecidedJanuary 11, 1892

StatusPublished

This text of 18 N.Y.S. 954 (Cluff v. Day) is published on Counsel Stack Legal Research, covering The Superior Court of the City of New York and Buffalo primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cluff v. Day, 18 N.Y.S. 954 (superctny 1892).

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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. Section 582, Code Civil Proc. 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. Section 582, Code Civil Proc. 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)

18 N.Y.S. 954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cluff-v-day-superctny-1892.