Macomb & Bouck v. Thompson

14 Johns. 207

• Court: New York Supreme Court
• Decided: May 15, 1817
• Status: Published

Opinion

Per Curiam.

The declaration in this case is on articles of agreement entered into between these parties, relative to submitting to arbitration certain disputes touching some land occupied or claimed by the defendant. By this agreement the plaintiffs’ title is acknowledged ; and the question submitted to the arbitrators was, how much should be paid for the land. The defendant signed for himself and six other persons, as his tenants ; and, by the award, the arbitrators directed the plaintiffs to convey to the defendant the whole of lot No. 3. The declaration avers that this was claimed or occupied by the defendant. To the four first counts in the declaration, the defendant pleads, that he did not occupy the whole of lot No. 3. To this plea there is a demurrer, because the defendant says that he did not occupy said lot, whereas he should also have pleaded that he did not claim said lot. The plea is, in this respect, defective. The articles of submission extend to all the land occupied or claimed by the defendant; and the declaration avers, that the whole of lot No. 3 was occupied or claimed by the defendant. If this was denied, the plea should have been as broad as the submission and the averment in the declar~tion. The plaintiffs are~ therefore, entitled to judgment 01) this demurrer.

The defendant demurs to the fifth count, and the cause of de~ murrer is, the want of an averment that the agreement was seah ed. This, in the case of the same plaintiffs against Wilber, de~ cided this term~

(a) has been considered good cause of demurrer; ~nd the defendant is, therefore, entitled to judgment thereon.

Judgment accordingly,

S. P. Van Santwood v. Sandford, 12 Johns. Rep. 197.