Cluff v. Day — 18 N.Y.S. 954

Majority

p. 954

Cluff v. Day et al.

(Superior Court of New York City,

General Term.

January 11, 1892.)

Headnote

Action by Mary Cluff against Henry S. Day and John Thompson.

Robert Owen, for plaintiff. Charles 2?. Wilson, for defendant Day. Isaac Fromme, for defendant Thompson.

Defendants’ exceptions were ordered to be heard in the first instance at general term. The complaint neither states the facts conferring jurisdiction upon the surrogate nor alleges that the decree and amending order referred to in the complaint were duly made, and in this is bad. Section 582, Code Civil Proc. While, as to defendant Thompson, it might not be improper to amend the pleading so as to conform to the proof, as the decree was not put in evidence against Day, it is best that the exceptions should be sustained, and that there should be a new trial. Costs to abide the event.

Ordered accordingly.