Marietta v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co.

New York Supreme Court

Marietta v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co.

52 Misc. 16, 100 N.Y.S. 1027

DecidedNovember 15, 1906

StatusPublished

This text of 52 Misc. 16 (Marietta v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co.) 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

Marietta v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co., 52 Misc. 16, 100 N.Y.S. 1027 (N.Y. Super. Ct. 1906).

Pincite

Opinion

Giegerich, J.

The complaint separately sets up three causes of action, the first being for work, labor and services performed by one Easter Cione, and his agents and servants, in and about the defendant’s property; the second for breach of contract on the part of the defendant in refusing to set twenty-nine other of Cione’s men to work on the defendant’s property, as it agreed to do, and the third for services rendered by said Cione for the defendant as boss of Italian laborers. The defendant demurs to the first and second separate causes of action for insufficiency, and argues, in support of the demurrer, that the allegations with respect to the same are incomplete. The second cause of action states, howeyer, that “ the plaintiff repeats, reiterates and alleges each and every allegation contained in paragraphs first and second of the complaint with the same force and effect as if here set forth in full.” The allegations so referred to are thus properly incorporated in the second cause of action, and they must be construed in connection with the allegations relating to that cause of action. Bogardus v. N. Y. Life Ins. Co. 101 N. Y. 328; Abb. Tr. Brief (2d ed.), 33, subd. 5, and cases there cited. The complaint with respect to the said causes .of action would, therefore, be complete if an assignment of the same by Cione to the plaintiff were alleged. The plaintiff’s counsel argues that such allegation is contained in the ninth paragraph of the complaint, and that the same has no exclusive connection with the third cause of action as distinguished from the first and second causes of action. But a reading of the complaint shows that such allegation is incorporated in the third cause of action, which, after alleging the rendition of services by Cione for the defendant as boss of Italian laborers and the reasonable value thereof, states [18]*18“ that * * * the said Easter Cione, for a valuable consideration, assigned, transferred and set over unto this plaintiff said claim and cause of action and money due or to become due thereunder, and that said plaintiff is now the owner thereof.” It cannot, therefore, be fairly held that the foregoing averments apply to the other two causes of action, which, as seen, are separately stated and numbered and relate to different matters, and different evidence will be required to establish' each. Abb. Tr. Brief, 36, subd. 6. The demurrer is therefore, sustained, with costs, and with leave to the plaintiff to amend within twenty days upon payment of such costs.

Demurrer sustained, with costs, with leave to plaintiff to amend within twenty days upon payment of costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Giegerich, J.

The complaint separately sets up three causes of action, the first being for work, labor and services performed by one Easter Cione, and his agents and servants, in and about the defendant’s property; the second for breach of contract on the part of the defendant in refusing to set twenty-nine other of Cione’s men to work on the defendant’s property, as it agreed to do, and the third for services rendered by said Cione for the defendant as boss of Italian laborers. The defendant demurs to the first and second separate causes of action for insufficiency, and argues, in support of the demurrer, that the allegations with respect to the same are incomplete. The second cause of action states, howeyer, that “ the plaintiff repeats, reiterates and alleges each and every allegation contained in paragraphs first and second of the complaint with the same force and effect as if here set forth in full.” The allegations so referred to are thus properly incorporated in the second cause of action, and they must be construed in connection with the allegations relating to that cause of action. Bogardus v. N. Y. Life Ins. Co. 101 N. Y. 328; Abb. Tr. Brief (2d ed.), 33, subd. 5, and cases there cited. The complaint with respect to the said causes .of action would, therefore, be complete if an assignment of the same by Cione to the plaintiff were alleged. The plaintiff’s counsel argues that such allegation is contained in the ninth paragraph of the complaint, and that the same has no exclusive connection with the third cause of action as distinguished from the first and second causes of action. But a reading of the complaint shows that such allegation is incorporated in the third cause of action, which, after alleging the rendition of services by Cione for the defendant as boss of Italian laborers and the reasonable value thereof, states [18]*18“ that * * * the said Easter Cione, for a valuable consideration, assigned, transferred and set over unto this plaintiff said claim and cause of action and money due or to become due thereunder, and that said plaintiff is now the owner thereof.” It cannot, therefore, be fairly held that the foregoing averments apply to the other two causes of action, which, as seen, are separately stated and numbered and relate to different matters, and different evidence will be required to establish' each. Abb. Tr. Brief, 36, subd. 6. The demurrer is therefore, sustained, with costs, and with leave to the plaintiff to amend within twenty days upon payment of such costs.

Demurrer sustained, with costs, with leave to plaintiff to amend within twenty days upon payment of costs.

Cite This Page — Counsel Stack

Bluebook (online)

52 Misc. 16, 100 N.Y.S. 1027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marietta-v-cleveland-cincinnati-chicago-st-louis-railway-co-nysupct-1906.

Opinion

Related

Cite This Page — Counsel Stack