Furst v. Hoverson

277 A.D.2d 1087

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 29, 1950
• Status: Published

Opinion

The defendant, Hoverson, has appealed from an order of the Albany Special Term of the Supreme Court, denying his motion to strike out various allegations of the complaint. The complaint charges in substance that the plaintiff is an innkeeper and as such was the bailee of certain sums of money in excess of $5,000, deposited with him, belonging to his guests. That the defendant stole that money from plaintiff’s possession. That thereafter he was arrested for the theft of the money and confined in the Sullivan County Jail and while so incarcerated the sum of $2,000 was found on his person and that defendant, Borden, the sheriff of the county took that money into his possession, and has possession thereof. It is then alleged that plaintiff was the owner of such money and that his demand therefor had been refused and judgment is asked against the defendants for the sum of $2,000. On the argument before the Special Term it was stipulated and agreed that paragraph “ Third ” of the complaint might be stricken out. The affidavit in support of the motion to strike out other paragraphs of the complaint alleges that the appellant was indicted for stealing the money from the hotel. He was tried twice on this indictment and in each instance the jury failed to agree. Thereafter the indictment was dismissed. The defendant’s application to strike out all other allegations of the complaint was properly denied. Order of the Special Term unanimously affirmed, with $10 costs and disbursements. Present — Poster, P. J., Heffernan, Brewster, Deyo and Bergan, JJ.