Union Mutual Insurance v. Osgood & Alden
The Superior Court of New York City
The plaintiffs moved for judgment on a demurrer to their complaint, on account of the frivolousness of the demurrer. The causes assigned for demurrer were, that the plaintiff has not legal capacity to sue, because, First, that the complaint does not show whether the plaintiffs are a voluntary association or a corporation.
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The plaintiffs moved for judgment on a demurrer to their complaint, on account of the frivolousness of the demurrer. The causes assigned for demurrer were, that the plaintiff has not legal capacity to sue, because, First, that the complaint does not show whether the plaintiffs are a voluntary association or a corporation. Second, that the complaint does not set forth the title of any act incorporating the plaintiffs. • Also, that it does not state facts sufficient to’ constitute a cause of action, in that it does not state that the plaintiffs had any power or authority to receive, hold, or…
1Opinion of the CourtBosworth, J.
There are two cases in Harrison’s Eeports, and two in Blackford’s, adjudging the precise point; that it is unnecessary to aver that the plaintiffs are a corporation. 3 Harrison’s R. 105, ed. 158, 4 Black. R. 267, 5 ed. 146.
The following cases in this state favor the same proposition: (1 J, C. 132, Bank of the U. S. v. Hoskins, 2 Cowen, 770; Bank of Utica v. Smalley,) and cases cited in the latter in the opinion of the court (4 Sand. S. C. R. 675, The Holyoke Bank v. Hoskins).
It is a general rule that it is unnecessary to aver anything in the complaint that is not required to be proved.
By 2 R.…
2Cited by13 opinions
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- Betts v. BacheThe Superior Court of New York City · 1862
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