Levy v. Cohen — 19 N.Y.S. 912

Majority

p. 912

Levy, Respondent, v. Cohen, Appellant.

(Common Pleas of New York City and Comity,

General Term.

May 14, 1892.)

Headnote

Appeal from city court, general term.

Action by John J. Lew against Stanley Cohen. For opinion of city court, see 18 N. Y. Supp. 155 .

Argued before Bookstaver and Bischoff, JJ.

Hoadley, Lauterbach & Johnson, for appellant. F. H. Smith, for respondent.

You were bound to make the demand at the principal office. In order to recover you must prove that you did make your demand at that office, but you have not alleged in your complaint that you made the demand at that office. Under the statute, it is also necessary for you to show that you made the demand during business hours. You could not recover unless you proved that, and, it being necessary for you to prove it, it was necessary for you to allege it. These actions are to recover a penalty, and the pleadings are to be construed with the same strictness that an indictment is; consequently, your complaint is, in our judgment, fatally defective in these two particulars. What you do not allege, you cannot prove. In actions upon a statute for the recovery of a penalty, the pleadings are more strongly construed than in actions upon contracts. In the first class of actions, everything which it" is necessary to prove must be alleged in the pleading. We think this judgment should be reversed; but you should have leave to amend the complaint upon paying the costs of the court below and upon this appeal within six days after service of the order of reversal upon plaintiff’s attorney.