Mather v. Mather

New York Supreme Court

Mather v. Mather

25 Misc. 51, 53 N.Y.S. 999

DecidedOctober 15, 1898

StatusPublished

This text of 25 Misc. 51 (Mather v. Mather) 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

Mather v. Mather, 25 Misc. 51, 53 N.Y.S. 999 (N.Y. Super. Ct. 1898).

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Opinion

Gaynor J.:

The statement for judgment is insufficient. The requirement that “ it must state concisely the facts out of which the debt arose ” (Code Civ. Pro. sec. 1274) was not fulfilled. The statement is principally of legal conclusions instead of precise facts by day, date and amount from which the legal conclusions could be drawn that the defendant loaned specific sums to the plaintiff, and that of the same the sum confessed has not been paid back. The [52]*52statement that “ there is now due and to become due ” a sum named is a conclusion of law, and there being no statements of fact from which such conclusion may be calculated and drawn it is nugatory. There should be a statement of facts so precise that any one could therefrom figure out and state the amount unpaid and calculate the interest thereon. Wo one can read the varying decisions upon the subject with entire satisfaction, but I think the foregoing must be the rule (Wood v. Mitchell, 117 N. Y. 439).

The promissory notes without a statement of facts showing an indebtedness for the amounts for which they were given are insufficient (Chappel v. Chappel, 12 N. Y. 215); though it seems that an account stated without any facts to show what the indebtedness arose out of is sufficient (Critten v. Vredenburgh, 151 N. Y. 536). I do not for the moment perceive the distinction.

The motion is granted.

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Gaynor J.:

The statement for judgment is insufficient. The requirement that “ it must state concisely the facts out of which the debt arose ” (Code Civ. Pro. sec. 1274) was not fulfilled. The statement is principally of legal conclusions instead of precise facts by day, date and amount from which the legal conclusions could be drawn that the defendant loaned specific sums to the plaintiff, and that of the same the sum confessed has not been paid back. The [52]*52statement that “ there is now due and to become due ” a sum named is a conclusion of law, and there being no statements of fact from which such conclusion may be calculated and drawn it is nugatory. There should be a statement of facts so precise that any one could therefrom figure out and state the amount unpaid and calculate the interest thereon. Wo one can read the varying decisions upon the subject with entire satisfaction, but I think the foregoing must be the rule (Wood v. Mitchell, 117 N. Y. 439).

The promissory notes without a statement of facts showing an indebtedness for the amounts for which they were given are insufficient (Chappel v. Chappel, 12 N. Y. 215); though it seems that an account stated without any facts to show what the indebtedness arose out of is sufficient (Critten v. Vredenburgh, 151 N. Y. 536). I do not for the moment perceive the distinction.

The motion is granted.

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25 Misc. 51, 53 N.Y.S. 999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mather-v-mather-nysupct-1898.

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