Schmerber v. Reinach

Appellate Division of the Supreme Court of New York

Schmerber v. Reinach

58 N.Y.S. 84, 38 A.D. 622

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 17, 1899

StatusPublished

This text of 58 N.Y.S. 84 (Schmerber v. Reinach) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schmerber v. Reinach, 58 N.Y.S. 84, 38 A.D. 622 (N.Y. Ct. App. 1899).

Pincite

Opinion

PEB CÜBIAM.

The affidavit of plaintiff contains all the facts necessary to make a good complaint. It alleges that defendant agreed to collect the legacy, and plaintiff gave him a power of attorney for that purpose; that defendant, acting under that power, had collected $13,-500; that he paid plaintiff $4,000, and refused to pay any more ov account for the remainder. That is a good complaint, and the plaintiff does not need any examination to enable him to set it up, as he already is able to aver those facts on oath. It may be that, when the issue is formed, he will need the evidence of the defendant to enable him to prove his case. But he does not need it to enable him to frame his complaint. The order was therefore prematurely granted.

The order denying the motion to vacate should therefore be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.

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PEB CÜBIAM.

The affidavit of plaintiff contains all the facts necessary to make a good complaint. It alleges that defendant agreed to collect the legacy, and plaintiff gave him a power of attorney for that purpose; that defendant, acting under that power, had collected $13,-500; that he paid plaintiff $4,000, and refused to pay any more ov account for the remainder. That is a good complaint, and the plaintiff does not need any examination to enable him to set it up, as he already is able to aver those facts on oath. It may be that, when the issue is formed, he will need the evidence of the defendant to enable him to prove his case. But he does not need it to enable him to frame his complaint. The order was therefore prematurely granted.

The order denying the motion to vacate should therefore be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.

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Bluebook (online)

58 N.Y.S. 84, 38 A.D. 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schmerber-v-reinach-nyappdiv-1899.