Fairbanks v. Bloomfield
The Superior Court of New York City
.Appeal from an order at special term, overruling a demurrer to the complaint. The complaint is in the words that follow. The plaintiffs in this case complain against the defendants, and allege that they, the said plaintiffs, are co-partners, doing business under the firm of Fairbanks & Allison, in the city of Halifax, in the province of Hova Scotia.
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.Appeal from an order at special term, overruling a demurrer to the complaint. The complaint is in the words that follow. The plaintiffs in this case complain against the defendants, and allege that they, the said plaintiffs, are co-partners, doing business under the firm of Fairbanks & Allison, in the city of Halifax, in the province of Hova Scotia. That one Gilmore Densmore M'Lellen, being the owner of a certain vessel or brigantine, called the Bloomfield, and being indebted to the said plaintiffs in the sum of eight hundred pounds, Hova Scotia currency, did, on the twenty-third day of…
1Opinion of the CourtBy the Court. Duer, J.
The demurrer to the complaint, we think, is well taken.
Whether the instrument, by virtue of which the plaintiffs aver that they became entitled to the possession of the vessel, is or is not a mortgage, is plainly a question of law, which it belongs to the court to determine; and to enable the court to, determine it, the complaint ought to have set forth, if not the whole instrument, at least those provisions which are relied on as giving to it the character of a mortgage; in other words, of an instrument vesting in the plaintiffs a legal right to the possession which they claimed. In calling…
2Cited by2 opinions
- Depew v. LealThe Superior Court of New York City · 1855
- John v. EytingeThe Superior Court of New York City · 1867