Executors of Keese v. Fullerton

2 Edm. Sel. Cas. 16

• Court: New York Circuit Court
• Decided: October 15, 1848
• Status: Published

Opinion

Edmonds, J.:

The last objection may be disregarded under section 151 of the Oode, because the averment complained of does not affect the substantial rights of the parties. But the other objection is more material, in this, that the complaint may all be true, and still the plaintiffs not be entitled to recover. To entitle them to recover they must aver and prove, not merely that the defendants received, under the assignment, enough to pay their debt, but enough to pay the prior claims for expenses and rent, and the plaintiffs’ debt. I will not, however, dismiss the complaint on that account; the plaintiffs may amend it, by inserting the necessary averments, on payment of the costs of this trial, the defendants to have twenty days to answer the amended complaint.