Thomas v. Desmond

New York Supreme Court

Thomas v. Desmond

12 How. Pr. 321

CourtNew York Supreme Court

DecidedApril 15, 1855

StatusPublished

Cited by5 cases

This text of 12 How. Pr. 321 (Thomas v. Desmond) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thomas v. Desmond, 12 How. Pr. 321 (N.Y. Super. Ct. 1855).

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Opinion

Welles, Justice.

The action is for the recovery of money, upon a contract between the defendant of the one part,.and Martin Allen and Caroline his wife of the other part. The complaint alleges a breach, on the part of the defendant, of that contract. The only title the plaintiff shows to the cause of action is by an allegation in the complaint in the following words, viz.:—

“ That the said plaintiff is now the sole owner of the said demand against the said defendant.” This I do not think is sufficient. It is merely an allegation of a conclusion of law. The defendant has a right to be informed by the complaint, how the plaintiff became the owner of the demand; whether by purchase, assignment, operation of law, or how otherwise. Some fact or facts should be stated by which it would appear how he became such owner. (Russel agt. Clapp, 7 Barb. 482; Bentley agt. Jones, 4 How. Pr. R. 202; M‘Murray agt. Thomas, 5 id. 14; Parker agt. Totten, 10 id. 233.)

There must be judgment for the defendant, with leave to the plaintiff to amend his complaint on the payment of costs.

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Welles, Justice.

The action is for the recovery of money, upon a contract between the defendant of the one part,.and Martin Allen and Caroline his wife of the other part. The complaint alleges a breach, on the part of the defendant, of that contract. The only title the plaintiff shows to the cause of action is by an allegation in the complaint in the following words, viz.:—

“ That the said plaintiff is now the sole owner of the said demand against the said defendant.” This I do not think is sufficient. It is merely an allegation of a conclusion of law. The defendant has a right to be informed by the complaint, how the plaintiff became the owner of the demand; whether by purchase, assignment, operation of law, or how otherwise. Some fact or facts should be stated by which it would appear how he became such owner. (Russel agt. Clapp, 7 Barb. 482; Bentley agt. Jones, 4 How. Pr. R. 202; M‘Murray agt. Thomas, 5 id. 14; Parker agt. Totten, 10 id. 233.)

There must be judgment for the defendant, with leave to the plaintiff to amend his complaint on the payment of costs.

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Bluebook (online)

12 How. Pr. 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-desmond-nysupct-1855.

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