Denithorne v. Denithorne

15 How. Pr. 232

• Court: New York Supreme Court
• Decided: February 15, 1857
• Status: Published

Opinion

Birdseye, Justice.

The first clause objected to in the complaint, is proper, and must stand. The next allegation, as to the payment of dues incurred by the defendant and Beard, is not, perhaps, strictly proper. It should have been an averrment that defendant applied these moneys to his own individual use and benefit. The greater particularity employed, does not seem to be of a character likely to injure the defendant very seriously, if at all. It is but giving him more distinct notice of the nature of the proof to be given against him. I do not see how he is “aggrieved thereby.” (See Clarke agt. Harwood, 8 How. Pr. R. 470.)

The next paragraph objected to is, in substance, an allegation that defendant applied other moneys of the parties jointly, to his'own exclusive use. Some allegation of that kind was necessary to a complete statement of the plaintiff’s cause of action. Though the statement is somewhat indirect, and might have been made more explicit, and more in accordance with established precedents, I am inclined to hold it sufficient. The motion must be denied, but without costs.