Mills v. Gould

The Superior Court of New York City

Mills v. Gould

1 Abb. N. Cas. 93

CourtThe Superior Court of New York City

DecidedJuly 15, 1876

StatusPublished

This text of 1 Abb. N. Cas. 93 (Mills v. Gould) is published on Counsel Stack Legal Research, covering The Superior Court of New York City primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mills v. Gould, 1 Abb. N. Cas. 93 (N.Y. Super. Ct. 1876).

Pincite

Opinion

Sedgwick, J.

The complaint is defective in not stating to whom and at what place the offer of perform r anee by plaintiff was made. It should also state particularly, what facts constituted the alleged offer of performance. There is ho allegation of fact in the complaint, but only a statement of a conclusion, as to, the breach by defendant. A refusal to accept from plaintiff might perhaps be evidence of defendant’s neglect or omission or refusal to perform his part, but it would not, under all circumstances, be conclusive evidence. The fact to be pleaded is what he did or did not, upon plaintiff’s offer or tender.

. In my opinion, the complaint is not defective by reason of the allegation as to the sale at the exchange.; The matter referred to does not show that the plaintiff" had not a cause of action, and is relevant, if at all, to-the question of damages. The allegations of the existence of the damage in the other parts of the complaint are sufficient.

The demurrer is sustained, with leave to plaintiff to amend complaint, and serve same within twenty days: upon payment of the costs of the demurrer.

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

Sedgwick, J.

The complaint is defective in not stating to whom and at what place the offer of perform r anee by plaintiff was made. It should also state particularly, what facts constituted the alleged offer of performance. There is ho allegation of fact in the complaint, but only a statement of a conclusion, as to, the breach by defendant. A refusal to accept from plaintiff might perhaps be evidence of defendant’s neglect or omission or refusal to perform his part, but it would not, under all circumstances, be conclusive evidence. The fact to be pleaded is what he did or did not, upon plaintiff’s offer or tender.

. In my opinion, the complaint is not defective by reason of the allegation as to the sale at the exchange.; The matter referred to does not show that the plaintiff" had not a cause of action, and is relevant, if at all, to-the question of damages. The allegations of the existence of the damage in the other parts of the complaint are sufficient.

The demurrer is sustained, with leave to plaintiff to amend complaint, and serve same within twenty days: upon payment of the costs of the demurrer.

Cite This Page — Counsel Stack

Bluebook (online)

1 Abb. N. Cas. 93, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mills-v-gould-nysuperctnyc-1876.