Kelly v. Kelly
New York Supreme Court
Error from the court of common pleas in the city and county of New-York, in an action of account. Thomas Kelly was plaintiff and James Kelly was defendant in the court below. The parties were partners as masons in doing work and furnishing materials in finishing a house for John Larkin. The declaration contained two counts, in which the defendant was alleged to have been the plaintiff’s receiver.
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Error from the court of common pleas in the city and county of New-York, in an action of account. Thomas Kelly was plaintiff and James Kelly was defendant in the court below. The parties were partners as masons in doing work and furnishing materials in finishing a house for John Larkin. The declaration contained two counts, in which the defendant was alleged to have been the plaintiff’s receiver. And it was alleged that, as such, he received by the hands of John Larkin §1150. In the first count the contract with John Larkin was set out, and the partnership between the parties alleged; and in…
1Opinion of the Court
By the Court,
Cady, P. J.
The principal, if not the only question in the cause is, was the exception to the refusal of the judge to nonsuit the plaintiff, well taken? The grounds for the exception stated in the bill of exceptions are, First. “ Upon the ground that the first count of the declaration was defective in alleging a copartnership, because it does not allege a mercantile copartnership.” Second. “If the plaintiff relies upon the allegations that the defendant became a receiver and was so appointed, the proof does not sustain it, and the narr does not aver that the defendant was…
2Cases cited1 opinion
- Van Gorden v. JacksonCourt for the Trial of Impeachments and Correction of Errors · 1809
3Cited by6 opinions
- Malone v. . Saints Peter and Paul's ChurchNew York Court of Appeals · 1902
- Herbert v. KingMontana Supreme Court · 1872
- Pumpelly v. Village of OwegoNew York Court of Appeals · 1863
- Closson v. MeansSupreme Judicial Court of Maine · 1885
- Abernethy v. Society of Church of PuritansNew York Court of Common Pleas · 1869
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