Denham v. Stillwell
The Superior Court of New York City
Appeal from an order made at a special term, allowing a demurrer to the complaint. The complaint alleged, First. That in or about the month of March, 1861, Thomas Gumming departed this life, leaving his last will and testament, bearing date the tenth day of January, 1861, whereby he authorized and empowered his executors, therein named, among other things, to sell and dispose of the real estate of which he should die seised ; that the plaintiffs were appointed by said will…
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Appeal from an order made at a special term, allowing a demurrer to the complaint. The complaint alleged, First. That in or about the month of March, 1861, Thomas Gumming departed this life, leaving his last will and testament, bearing date the tenth day of January, 1861, whereby he authorized and empowered his executors, therein named, among other things, to sell and dispose of the real estate of which he should die seised ; that the plaintiffs were appointed by said will executors thereof; that on or about the first day of April, 1861, the said will was duly proven before the surrogate of…
1Opinion of the Court
Robertson, Ch. J.
If I were satisfied that the complaintj in this case, by any fair legal construction of its language, .contained two alleged causes of action,- as numbered first and second, separately stated and distinguished by appropriate words, (Benedict v. Seymour, 6 How. Pr. R. 298,) I should also be satisfied that the statement of each was demurrable; one, because a party cannot recover in an action at law for the price, of land, without tendering a conveyance for it on the day fixed by the contract, and the other as wholly unintelligible, without some reference to the former, which it…
2Cases cited3 opinions
- Nichols & Fay v. Rensselaer County Mutual InsuranceNew York Supreme Court · 1839
- Elmendorf v. HarrisNew York Supreme Court · 1830
- Hall v. McKechnieNew York Supreme Court · 1856