Sun Mutual Insurance v. Dwight

1 Hilt. 50

• Court: New York Court of Common Pleas
• Decided: February 15, 1856
• Status: Published

Opinion

INGRAHAM, Eirst Judge. —

I am at a loss, from tbe papers submitted on this appeal, to say whether the same is from tbe decision on a motion to strike out tbe demurrer as frivolous, ;jpr from a decision upon tbe argument of tbe demurrer. Tbe appellant should, see that tbe papers necessary on tbe appeal should be submitted to tbe court. If be neglects to do so, be has no cause to complain if his appeal is dismissed.

Upon tbe merits, I think, tbe demurrer cannot be sustained. Tbe complaint alleges tbe making and delivery to tbe plaintiffs of tbe note in suit; tbat the same was not paid at maturity nor since tbat time; tbat tbe plaintiffs are a corporation under a statute 'which is designated particularly, and other amendatory acts.

These facts are all admitted by the demurrer, which alleges, for cause of demurrer, that tbe above does not constitute a cause of action.

Nothing more would be necessary, to maintain the plaintiffs’ case before a jury, than tbe proof of such facts. The omission to set out tbe amendatory acts is not material. A reference to tbe first act shows the plaintiffs to be a corporation, and the residue may be considered as surplusage.

I rather think this is not a ground of demurrer, by the. code. There is no defect in stating a sufficient cause of action, and for any tiling beyond tbat, instead of demurring, the defendant should move to have the complaint made more specific. If no act oí incorporation had been stated, the result might be otherwise.

I have expressed an .opinion upon tbe merits against tbe appeal, but, for tbe reason first stated, tbe appeal must be dismissed with costs.

Appeal dismissed.