Stone v. Case

13 Wend. 283

• Court: New York Supreme Court
• Decided: January 15, 1835
• Status: Published

Opinion

By the court,

Savage, Ch. J.

The counsel for the plaintiff in error contends that the declaration was sufficient. In Timmerman v. Morison. 14 Johns. R. 369, the plaintiff declared in writing :• his declaration containing the general counts, but without stating any time, or averring a request on the part of the defendant. The defendant demurred specially, but the justice decided the declaration was sufficient. On certiorari, this court said that the demurrer was well taken, and the defendant was entitled to judgment thereon. In Keyser v. Shafer, 2 Cowen, 437, such a declaration was held good in a justice’s court on general demurrer ; and in Van Hoesen v. Van Alstine, 3 Wendell, 78, it was said that although pleadings in justice’s courts are to be received with liberality, yet, when they are objected to beforethe justice they are to be governed by the same rules as pleadings in other courts. When a cause from a justices’ court is brought tip for review, and no objection was taken to the pleadings before the justice, this court will not readily listen to such an objection, particularly one of form merely. If it be good in substance, that is sufficient; and no doubt it was in reference to that principle that the revised statutes provide, that where a plaintiff declares orally, the justice shall enter in his docket the substance thereof. 2 R. S. 234, § 48. The legislature did not thereby intend to say that a declaration before a justice should not be perfect in form as well as substance, if so required., at the time when put in.

The justice erred in saying the declaration was sufficient, and also in giving judgment without evidence of the amount of the plaintiff’s damages. The common pleas were correct in reversing the judgment; and their judgment must be affirmed, with single costs.

Judgment of common pleas affirmed.