Phillips v. Bartlett

9 Bosw. 678

• Court: The Superior Court of New York City
• Decided: May 15, 1863
• Status: Published

Opinion

Robertson, J.

The complaint in this case alleges that between the first day of February and 27th of September, in the year 1862, “ the plaintiffs sold and delivered to the “ defendant, at his special instance and request, a large “ * * quantity of hoots and shoes,” of a certain value, and that there is due and unpaid therefor “ a certain sum, “ which the defendant promised to pay the plaintiffs, but “ though often requested ” by them, has wholly refused to pay it. The only cause of demurrer assigned is that the complaint does “ not state facts sufficient to constitute “ a cause of action.”

It appears to me enough facts are stated to constitute a cause of action; whether they are stated with sufficient definitiveness and certainty to identify the contracts, or inform the defendant of what he is to meet, is not a question for a demurrer. The allegation of partnership is not necessary, or even that the goods belonged to the plaintiffs, which is implied in the sale and delivery alleged. Even the promise to pay is unnecessarily stated.

The demurrer must be overruled, and judgment given for the plaintiff, on the usual terms.