Vanderburgh v. Van Valkenburgh

8 Barb. 217

Opinion

By the Court, Parker, J.

The declaration in this cause is clearly bad, within the cases of Pattison v. Adams, (7 Hill, 126,) and Bond v. Mitchell, (3 Barb. Sup. Court Rep. 304.) The plaintiff should have alledged that the property replevied was the property of the plaintiff. This should have been done by a direct and issuable averment, and not by allegations of the evidence of such ownership. The facts set forth in the declaration, if proved, would have been proper evidence in support of the allegation of property in the plaintiff. This question has been so recently before this court, in one of the cases above cited, that it is only necessary to refer to the opinions in these cases for the authorities and reasons for the decision.

The counsel for the plaintiff claims that the error in pleading may be disregarded under section 176 of the code, which, by the 2d section of the supplemental act is made applicable to existing suits. That section directs that the court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the party; and that no judgment shall be reversed or affected by reason of such error or defect. I do not understand this section as making valid a bad pleading, in a suit brought under the old practice, when the defects complained of are made the ground of demurrer. The defect was pointed out by the demurrer, and the plaintiff might then have amended his declaration. He preferred, however, to take issue on the question whether the pleading is defective; and its sufficiency must therefore be determined by the court. The 176th section of the code adds but little, if any thing, to the power of amendment conferred by sec. 8, 2 R. S. 2d ed. 344.

The demurrer is well taken, and there must be judgment for the defendants, with leave to the plaintiff to amend on payment of costs.