Tovey v. Culver

22 Jones & S. 123

• Court: The Superior Court of New York City
• Decided: December 30, 1886
• Status: Published

Opinion

By the Court.—Sedgwick, Ch. J.

On the trial the plaintiff offered testimony as to the services. The counsel for the defendants objected that the complaint did not aver that the plaintiff had rendered service. The objection was overruled.

The averments of the complaint on this subject were that the plaintiff had obtained judgment in a district court for $120.40 damages and costs; “that the said judgment was obtained for services rendered by. the plaintiff to said corporation in publishing their advertisement, &c., for which services the said corporation agreed to pay the sum of $97.50.”

I am of opinion that the averments as to service are descriptive of the judgment that was entered, and not an assertion that in fact the services were rendered. As they are parts of a description, it cannot be said that the complaint avers argumentatively that services were rendered, for when properly used as description, the defendants could not reason that they were meant to be used for another purpose.

Indeed all the allegations as to the judgment were irrelevant to the plaintiff’s supposed cause of action. The defendants were not held to meet them, and as they could not be divided, they were not held to meet any part of them.

The judgment and order appealed from are reversed, and new trial ordered with costs to abide the event.

Freedman, J., concurred.