County of Erie v. Town of Tonawanda

Headnote

County of Erie v. Town of Tonawanda, 176 App. Div. 942 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 10, 1917, which affirmed an order of Special Term overruling a demurrer to the complaint. The plaintiff sought to recover from the defendant the amount of certain moneys alleged to have been erroneously paid to defendant upon a distribution of certain moneys collected for bank taxes on the stock of a bank located in the city of Tonawanda. The defendant demurred to the complaint on the ground: First, that the plaintiff was not the real party in interest, and, therefore, had no legal capacity to sue for the recovery, of any of this money in that on the face of the complaint the money in question belonged to the city of Tonawanda and not to the plaintiff, and second, that the complaint did not state facts sufficient to constitute a cause of action.

The following question was certified: “ Does the complaint state facts sufficient to constitute a cause of action? ”