Cluff v. Day — 42 N.Y. St. Rep. 960

Majority

p. 960

Mary Cluff, Pl’ff, v. Henry S. Day and John Thompson, Def’ts.

Headnote

Exceptions ordered heard at general term in the first instance.

Robert Owen, for pl’ff; O liarles B. Wilson, for def’t Day; Isaac Bromme, for def’t Thompson.

Defendant’s 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 533, Code Civil Pro.

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.

Dugro and Gildersleeve, JJ., concur.