Roome v. Jennings — 48 N.Y. St. Rep. 516

Majority

p. 516

William P. Roome et al., Resp’ts. v. Frederick C. Jennings et al., App’lts.

(City Court of New York, General Term,

Filed October 24, 1892.)

Headnote

Pleading—Sufficiency of complaint.

Where the objection that a complaint does not state facts sufficient to constitute a cause of action is not taken until the trial, the allegations are not subject to as close a criticism as upon demurrer. It is sufficient in such case if the complaint in some form contains the elements essential to a cause of action.

Appeal from judgment entered on verdict in favor of plaintiffs.

F. A. Thompson, for resp’ts; Putney & Bishop, for app’lts.

Where the objection that a complaint does not state facts sufficient to constitute a cause of action is not taken until the trial, the allegations are not subject to as close a ■criticism as upon demurrer.

It is sufficient if the complaint in some form contains the elements essential to a cause of action. Disbrow v. Harris, 122 N. Y., 362 ; 33 St. Rep., 558 ; Zabriskie v. Smith, 13 N. Y., 332 ; Sanders v. Soutter, 126 id., 193; 37 St. Rep., 1 ; Clark v. Crego, 51 N. Y., 646 .

The complaint liberally construed makes out a complete cause -of action, and the case was properly sent to the jury on the evidence.

It was intelligently submitted and the proofs sufficiently warrant the result arrived at.

There is no merit in the exceptions.

It follows that the judgment appealed from must be affirmed, •with costs.

McCARTHY, J., concurs.