Hyperlawhypertext legal database Newton v. Browne 56 N.Y. St. Rep. 605

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Newton v. Browne

56 N.Y. St. Rep. 605 Court N.Y. City Ct. Decision date 1893-11-27 English

Delivered by McCarthy, J.

Contents

Majority

p. 605
Henry J. Newton, App’lt, v. Henry H. Browne, Resp’t.
(New York City Court, General Term,
Filed November 27, 1893.)

Headnote

Pleading—Demurrer.
The complaint, in an action to recover an indebtness, is demurrable if it fails to aver the non-payment of the alleged debt.
p. 606
Appeal from an interlocutory judgment overruling a demurrer.
B. W. Brenen, for app’lt; 27. Huffman Browne, for resp’t.

The complaint in this action was demurrable. It fails to allege the non-payment of the alleged debt of $100. This is an essential allegation. “ See Lent v. N. Y. & H. R. Co., 130 N. Y., 510 , 511, 512 and 513; 42 St. Rep., 592 .

The judgment and order overruling demurrer should be reversed, and demurrer sustained, with costs, with leave to the plaintiff to serve an amended complaint on payment of twenty dollars costs and the costs of this appeal.

Yah Wyck, J., concurs.