Bailey v. Richmond

Headnote

Pleading.—Statements as to indebtedness amias to “ succession” to pab’tnership. claim—when deemed conclusions and not facts.

Appeal by plaintiff from judgment in favor of defendant, upon demurrer by defendant to the complaint.

The complaint rested upon the averments that between certain dates, the defendant became indebted in a certain •sum, in that between the said dates, the defendant was employed as a clerk by a firm of Albinola & Bailey, at a stated salary, and that between such dates, the defendant drew from the firm the sum of $721.36 more than was due him from said firm, for his salary as clerk aforesaid, or by reason of any other cause or thing whatsoever.

„ The court at General Term, said : “It is evident, that •conclusions only are here pleaded, and not facts upon which legal judgment is asked, and for this reason the complaint was demurrable as to the.first cause of action.”

As to both causes of action, the complaint also averred that “ the plaintiff succeeded to the business, book accounts ■and property of said firm of Albinola & Bailey, and to the claim against the defendant; that said succession and title was obtained by a written instrument on the part of the plaintiff’s then copartner, and which instrument plaintiff will refer to on the trial thereof.”

The court at General Term, said : “ It is also evident that here, the plaintiff has given his judgment as to there-having been a succession, rather tlia-n the facts which woulcL make him the assignee or transferee of the firm. ”