Fabbricotti v. Launitz
The Superior Court of New York City
The plaintiff sued upon two promissory notes, drawn in his favor by the defendant. The defendant in his answer admitted the making of the notes, but stated that they were given in part payment for marble, which the plaintiff, by a written agreement, engaged to deliver to him at certain times therein specified; that the defendant is a sculptor, and was employed by the state of Kentucky to execute a piece of statuary, on or before a certain day, under heavy penalties ; that…
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The plaintiff sued upon two promissory notes, drawn in his favor by the defendant. The defendant in his answer admitted the making of the notes, but stated that they were given in part payment for marble, which the plaintiff, by a written agreement, engaged to deliver to him at certain times therein specified; that the defendant is a sculptor, and was employed by the state of Kentucky to execute a piece of statuary, on or before a certain day, under heavy penalties ; that the plaintiff well knew the fact of the defendant’s having been employed by the state of Kentucky, and that the marble was…
1Opinion of the CourtMason, J.
This motion proceeds on a misapprehension of the 'meaning of the word a irrelevant,” as used in the 160th section of the code. Matter is irrelevant in a pleading which has no bearing on the subject matter of the controversy, and cannot affect the decision of the court. But it is implied that independently of the irrelevant matter, the plaintiff has stated no suffi*745cient cause of action or the defendant a valid defence. If the complaint does not state a case on which, if uncontradicted, the plaintiff has a right to recover, the defendant must- present his objection by demurrer, and not by…
2Cited by9 opinions
- Snow v. CarruthDistrict Court, D. Massachusetts · 1856
- Ayres v. O'FarrellThe Superior Court of New York City · 1863
- Merritt v. GouleyNew York Supreme Court · 1890
- Barth v. BurtNew York Supreme Court · 1865
- Collyer v. CollinsNew York Supreme Court · 1864
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