Villias v. Stern

24 Misc. 380, 53 N.Y.S. 267

• Court: City of New York Municipal Court
• Decided: August 15, 1898
• Status: Published

Opinion

Conlan, J.

This is an appeal from an interlocutory judgment overruling a demurrer to the complaint."

The ground of the. demurrer is that the complaint does not state facts sufficient to constitute a cause of action.

The third paragraph of the'complaint, entire, is as. follows:

“ Third. That between the 1st day of July, 1893, and the 1st day of June, 189.5, at various times the defendants received from the plaintiff' the sum of $1,550 to the use of the plaintiff.” ■

And then in the fifth paragraph of the complaint there is an . allegation that before the suit was brought this sum was "demanded of the defendants, arid that no part thereof has been paid.

These allegations constitute, of themselves, a perfect cause of action against the defendants for the recovery of the sum stated. There is nothing of ambiguity' or uncertainty about them.

The statement is one of money had and received to the use of another, and the demand for its repayment, and. the language employed left nothing further to be alleged.

' The fact that the complaint also stated other matters does not render the pleading demurrable.

We are referred by the counsel for the respondent to the language employed by the late Mr. Austin Abbott in his Trial Brief, and, therefore, quote as follows:

“ A demurrer on the ground that the complaint does- not state facts sufficient to constitute a cause of action is not sustainable except when, no cause of action whatever is presented for any part of the relief demanded.” § 90.

And again,, under the new procedure, a demurrer for insufficiency can only be sustained when it appears that admitting all the facts alleged, it presents no cause of action whatever. Same, § 91, citing Marie v. Garrison, 83 N. Y. 14; Wetmore v. Porter, 92 id. 76-80; People v. Mayor, 8 Abb. Pr. 7.

In all of which cases the demurrers were overruled on appeal on the precise principle stated here.

Whatever else may be inserted in a pleading, by way of allegation, beyond the statement of facts sufficient to constitute a cause of action, may be disregarded as surplusage, as the rules of pleading require only that a good cause of action appear, and we need not go into all of the other allegations of a pleading for the purpose of spelling out whether or not they are matters properly inserted or alleged, as all depends upon the force and effect to be given to the pleading in the form as presented to us on this appeal.- (

We are of the opinion that the judgment appealed from must be affirmed, with costs.

Olcott and Schuchman, JJ., concur.

Judgment affirmed, with costs.