Taylor v. MacLea

City of New York Municipal Court

Taylor v. MacLea

11 N.Y.S. 640, 34 N.Y. St. Rep. 61, 19 N.Y. Civ. Proc. R. 429, 1890 N.Y. Misc. LEXIS 2280

CourtCity of New York Municipal Court

DecidedDecember 1, 1890

StatusPublished

Cited by1 cases

This text of 11 N.Y.S. 640 (Taylor v. MacLea) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Taylor v. MacLea, 11 N.Y.S. 640, 34 N.Y. St. Rep. 61, 19 N.Y. Civ. Proc. R. 429, 1890 N.Y. Misc. LEXIS 2280 (N.Y. Super. Ct. 1890).

Pincite

Opinion

Per Curiam.

Chief Justice Helson said, in Bayley v. Insurance Co., 6 Hill, at page 479: “As a general rule, a written contract should be set out in pleading according-to its legal effect; but, where the true meaning is doubtful, it is most advisable to set out the contract in hcec verba, and leave the court to construe it.” Citing 1 Chit. Pl. 306, 307; Ross v. Parker, 1 Barn. & C. 358; Moore v. Earl of Plymouth, 3 Barn & Ald. 66,69, 70. Judge Duer, in Fairbanks v. Bloomfield, 2 Duer., at page 353, went further. He said: “The safest course, under the Code, where the action is founded on an instrument in writing, is to annex a copy and refer to it as part of the complaint.” This we hold is good practice. It was followed in the present instance. The contract annexed is clear and explicit, and, by its terms, the money sued for became due and payable as stated in the declaration. The demurrer interposed was clearly frivolous, and was properly overruled. The defendant, instead of appealing from the interlocutory judgment, has appealed from the order only, and, in consequence, we will, instead of affirming the order, dismiss the appeal, with costs. Bank v. Lynch, 76 N. Y. 514; Pardee v. Tilton, 83 N. Y. 624; Smith v. Rathburn, 88 N. Y. 660.

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

Per Curiam.

Chief Justice Helson said, in Bayley v. Insurance Co., 6 Hill, at page 479: “As a general rule, a written contract should be set out in pleading according-to its legal effect; but, where the true meaning is doubtful, it is most advisable to set out the contract in hcec verba, and leave the court to construe it.” Citing 1 Chit. Pl. 306, 307; Ross v. Parker, 1 Barn. & C. 358; Moore v. Earl of Plymouth, 3 Barn & Ald. 66,69, 70. Judge Duer, in Fairbanks v. Bloomfield, 2 Duer., at page 353, went further. He said: “The safest course, under the Code, where the action is founded on an instrument in writing, is to annex a copy and refer to it as part of the complaint.” This we hold is good practice. It was followed in the present instance. The contract annexed is clear and explicit, and, by its terms, the money sued for became due and payable as stated in the declaration. The demurrer interposed was clearly frivolous, and was properly overruled. The defendant, instead of appealing from the interlocutory judgment, has appealed from the order only, and, in consequence, we will, instead of affirming the order, dismiss the appeal, with costs. Bank v. Lynch, 76 N. Y. 514; Pardee v. Tilton, 83 N. Y. 624; Smith v. Rathburn, 88 N. Y. 660.

Cite This Page — Counsel Stack

Bluebook (online)

11 N.Y.S. 640, 34 N.Y. St. Rep. 61, 19 N.Y. Civ. Proc. R. 429, 1890 N.Y. Misc. LEXIS 2280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-maclea-nynyccityct-1890.

Opinion

Related

Cite This Page — Counsel Stack