Douglass v. Winslow

20 Jones & S. 439

• Court: The Superior Court of New York City
• Decided: December 7, 1885
• Status: Published

Opinion

By the Court.—Freedman, J.

Although, in the opinion of the court below, the rule applicable to the determination of such demurrers as were interposed in this action, was stated perhaps in terms too broad, yet in fact the demurrers were correctly disposed of.

The charge of conspiracy must fail for want of an averment in a competent form, that the conspiracy, or the acts done in furtherance thereof, resulted in a damage to the plaintiffs.

And there being no allegation that the company paid over money for the use of the plaintiffs, or even gave a credit to their use, and the allegation that “the sum of $20,000 was, by said company, paid or credited to, or divided among these defendants, or some of them,” being in the disjunctive and alternative, thus including the company as a defendant in the charge of having received the money or credit, or part thereof, the complaint, especially in view of the separate demurrers filed by the defendants, sets forth neither an action for money had and received for plaintiffs’ use, nor one for a conversion of plaintiffs’ money or property, nor an action against any particular defendant.

. The judgments appealed from should be affirmed, with costs.

Van Vorst, J., concurred.