Simmons v. Lyons

Headnote

This was an action to recover possession of certain personal property. The complaint alleged “that the defendant has become possessed of and wrongfully detains from the plaintiffs the following goods and chattels of the plaintiffs.”

Upon the opening of the case at the trial defendant moved to dismiss the complaint on the ground that it stated no cause of action; that there was no allegation of ownership or possession or right of possession in plaintiff, or that the property had been wrongfully taken, or had been demanded before suit. Plaintiffs’ counsel thereupon moved to amend by inserting in the complaint, after the words “ possessed of,” the words “ by forcibly taking from the plaintiffs; ” the court granted the motion to amend and denied the motion to dismiss. Held, that the complaint sufficiently alleged ownership

(3 Burrill R., 296; PatUson v. Adams, 7 Hill, 126 ); that the amendment was within the discretion of the court, and could not be reviewed {N. Y. Ice Go. v. N. W. Ins. Go., 23 N. Y., 357 ); and that, as amended, no allegation of demand was necessary.