Gruen v. Trustees of the Peabody Education Fund

New York Supreme Court

Gruen v. Trustees of the Peabody Education Fund

29 Misc. 203, 60 N.Y.S. 896

DecidedOctober 15, 1899

StatusPublished

This text of 29 Misc. 203 (Gruen v. Trustees of the Peabody Education Fund) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gruen v. Trustees of the Peabody Education Fund, 29 Misc. 203, 60 N.Y.S. 896 (N.Y. Super. Ct. 1899).

Pincite

Opinion

Gildersleeve, J.

Defendants demur to the complaint on the ground that it does not set forth facts sufficient to constitute a cause of action. The complaint appears to rest its alleged cause of action upon a sort of implied agreement to pay rent for the use of furniture from the 14th of October, 1894, to the date of the commencement of the action, which was about April or May, 1899. The only direct allegation of ownership of said furniture by plaintiff is that he owns the furniture, i. e., at the time of the drawing of the complaint in April, 1899. There is no allegation in the complaint that plaintiff was the owner from October 14, 1894, or at any time previous to the making of the complaint in April, 1899. The complaint alleges that on October 14, 1894, the defendants entered into possession of the hotel in question, and found certain furniture there, which they used, apparently, without any express agreement with anybody, but that a “ fair and reasonable rental to the plaintiff for the use of said furniture and fixtures is $9,300 a year during the period they have been used, to-wit, from October 14, 1894, to the commencement of this action.” The complaint also states that “ the furniture and fixtures belong to and are the property of the plaintiff, and that [204]*204he purchased the same from John W. Basch, the assignee, under a general assignment of ¡Nettie ¡N". Gerlach, who was the owner thereof, together with all her right and title and interest therein,, and also purchased any claim or demands she had in regard, thereto.” When he so made the purchase, and during what period, the said Gerlach was owner, and what her claims were, do not appear. The complaint is very imperfectly drawn. The rule, however, is that the pleading must be liberally construed (Code, § 519); and a cause of action will be deemed to be stated in a complaint whenever sufficient facts to sustain an action can be fairly gathered from all the averments, although the statement of them may be argumentative and the pleading deficient in technical language. Sanders v. Soutter, 126 N. Y. 193. In the case of Marie v. Garrison, 83 id. 14-23, the court of last resort used the following language, viz.: “A demurrer to a complaint for insufficiency can only be sustained when it appears that, admitting all the facts-alleged, it presents no cause of action whatever. It is not sufficient that the facts are imperfectly or informally averred, or that the pleading lacks definiteness and precision, or that the material facts are-.only argumentatively averred. The complaint on demurrer is deemed to allege what can be implied from the allegations therein, by reasonable and fair intendment, and facts impliedly averred aretraversable in the same manner as though directly averred.’* Applying this doctrine to the case at bar, I incline to the opinion, that, defective as the complaint is, still there is sufficient to warrant the overruling of the demurrer. The defendants may serve-an answer within twenty days on payment of costs.

Demurrer overruled.

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Gildersleeve, J.

Defendants demur to the complaint on the ground that it does not set forth facts sufficient to constitute a cause of action. The complaint appears to rest its alleged cause of action upon a sort of implied agreement to pay rent for the use of furniture from the 14th of October, 1894, to the date of the commencement of the action, which was about April or May, 1899. The only direct allegation of ownership of said furniture by plaintiff is that he owns the furniture, i. e., at the time of the drawing of the complaint in April, 1899. There is no allegation in the complaint that plaintiff was the owner from October 14, 1894, or at any time previous to the making of the complaint in April, 1899. The complaint alleges that on October 14, 1894, the defendants entered into possession of the hotel in question, and found certain furniture there, which they used, apparently, without any express agreement with anybody, but that a “ fair and reasonable rental to the plaintiff for the use of said furniture and fixtures is $9,300 a year during the period they have been used, to-wit, from October 14, 1894, to the commencement of this action.” The complaint also states that “ the furniture and fixtures belong to and are the property of the plaintiff, and that [204]*204he purchased the same from John W. Basch, the assignee, under a general assignment of ¡Nettie ¡N". Gerlach, who was the owner thereof, together with all her right and title and interest therein,, and also purchased any claim or demands she had in regard, thereto.” When he so made the purchase, and during what period, the said Gerlach was owner, and what her claims were, do not appear. The complaint is very imperfectly drawn. The rule, however, is that the pleading must be liberally construed (Code, § 519); and a cause of action will be deemed to be stated in a complaint whenever sufficient facts to sustain an action can be fairly gathered from all the averments, although the statement of them may be argumentative and the pleading deficient in technical language. Sanders v. Soutter, 126 N. Y. 193. In the case of Marie v. Garrison, 83 id. 14-23, the court of last resort used the following language, viz.: “A demurrer to a complaint for insufficiency can only be sustained when it appears that, admitting all the facts-alleged, it presents no cause of action whatever. It is not sufficient that the facts are imperfectly or informally averred, or that the pleading lacks definiteness and precision, or that the material facts are-.only argumentatively averred. The complaint on demurrer is deemed to allege what can be implied from the allegations therein, by reasonable and fair intendment, and facts impliedly averred aretraversable in the same manner as though directly averred.’* Applying this doctrine to the case at bar, I incline to the opinion, that, defective as the complaint is, still there is sufficient to warrant the overruling of the demurrer. The defendants may serve-an answer within twenty days on payment of costs.

Demurrer overruled.

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Bluebook (online)

29 Misc. 203, 60 N.Y.S. 896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gruen-v-trustees-of-the-peabody-education-fund-nysupct-1899.

Opinion

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