Goodyear Dental Vulcanite Co. v. White

10 F. Cas. 752

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: August 7, 1879
• Status: Published

Opinion

BLATCHFORD, Circuit Judge.

I think the decided weight of authority is that such causes of action as are set forth in the first and second counts of the declaration in this case were actionable at common law. And I do not think there is any enactment of the state of New York, or any decision' of any court of the state of New York, which deprives the plaintiff of such common-law remedy by action, on such causes of action.

The defendant objects that each of the three counts is defective in not stating that the supposed maintenance was committed in relation to suits actually pending when the maintenance took place. The fact is otherwise as to the first and third counts. The first count avers assistance with money after the commencement of the suits. The third count avers the filing of the answer in the suits. The second count is insufficient because it does not aver that the answers were ever used or filed in the suits. The demurrers to the first and third counts are overruled, with costs to the plaintiffs. The demurrer to the second count is sustained,, with leave to the plaintiffs to amend on payment of costs.

[See Case No. 5,601.]