Levy v. Cohen — 45 N.Y. St. Rep. 942

Majority

p. 942

John J. Levy, Resp’t, v. Stanley Cohen, App’lt.

Headnote

Appeal from order overruling demurrer from the city court.

F. E. Smith, for resp’t; Eoadley, Lcmuterbaeh & Johnson, for app’lt.

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.

p. 943

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.

Order overruling demurrer reversed with leave to amend upon payment of costs.