Levy v. Cohen

New York Court of Common Pleas

Levy v. Cohen

19 N.Y.S. 912, 45 N.Y. St. Rep. 942

DecidedMay 14, 1892

StatusPublished

This text of 19 N.Y.S. 912 (Levy v. Cohen) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Levy v. Cohen, 19 N.Y.S. 912, 45 N.Y. St. Rep. 942 (N.Y. Super. Ct. 1892).

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Opinion

Per Curiam.

You were bound to make the demand at the principal office. In order to recover you must prove that you did make your demand at that office, but you have not alleged in your complaint that you made the demand at that office. Under the statute, it is also necessary for you to show that you made the demand during business hours. You could not recover unless you proved that, and, it being necessary for you to prove it, it was necessary for you to allege it. These actions are to recover a penalty, and the pleadings are to be construed with the same strictness that an indictment is; consequently, your complaint is, in our judgment, fatally defective in these two particulars. What you do not allege, you cannot prove. In actions upon a statute for the recovery of a penalty, the pleadings are more strongly construed than in actions upon contracts. In the first class of actions, everything which it" is necessary to prove must be alleged in the pleading. We think this judgment should be reversed; but you should have leave to amend the complaint upon paying the costs of the court below and upon this appeal within six days after service of the order of reversal upon plaintiff’s attorney.

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Per Curiam.

You were bound to make the demand at the principal office. In order to recover you must prove that you did make your demand at that office, but you have not alleged in your complaint that you made the demand at that office. Under the statute, it is also necessary for you to show that you made the demand during business hours. You could not recover unless you proved that, and, it being necessary for you to prove it, it was necessary for you to allege it. These actions are to recover a penalty, and the pleadings are to be construed with the same strictness that an indictment is; consequently, your complaint is, in our judgment, fatally defective in these two particulars. What you do not allege, you cannot prove. In actions upon a statute for the recovery of a penalty, the pleadings are more strongly construed than in actions upon contracts. In the first class of actions, everything which it" is necessary to prove must be alleged in the pleading. We think this judgment should be reversed; but you should have leave to amend the complaint upon paying the costs of the court below and upon this appeal within six days after service of the order of reversal upon plaintiff’s attorney.

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Bluebook (online)

19 N.Y.S. 912, 45 N.Y. St. Rep. 942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levy-v-cohen-nyctcompl-1892.