Gillespie v. Montgomery
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendants, George L. Montgomery and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on 'the 25th day of June, 1903, upon the decision of the court, rendered after a'trial at the Kings County Special Term, overruling the defendants’ demurrer to the plaintiff’s complaint.
1Opinion of the Court
Jenks, J.:. The defendants demur that the complaint does not state facts sufficient to constitute a cause of action. . The position of the learned counsel for the appellants is that the plaintiff seeks equitable relief to which he is not entitled, and that a complaint in an action at law is made to the equitable side of the court.
Leggett v. Stevens (77 App. Div. 612) holds that if the complaint state a cause of action of which some court has cognizance, a demurrer that the complaint does not state facts sufficient to constitute a cause of action, does not technically raise the question…
2Cases cited15 opinions
- Sage v. . CulverNew York Court of Appeals · 1895
- Wetmore v. . PorterNew York Court of Appeals · 1883
- O'Brien v. . FitzgeraldNew York Court of Appeals · 1894
- Mitchell v. . ThorneNew York Court of Appeals · 1892
- Abbey v. . WheelerNew York Court of Appeals · 1902
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3Cited by4 opinions
- Society Milion Athena, Inc. v. National Bank of GreeceAppellate Division of the Supreme Court of the State of New York · 1938
- Lockwood v. Bedell Co.Appellate Division of the Supreme Court of the State of New York · 1917
- Schuyler v. Kirk-Brown Realty Co.Appellate Division of the Supreme Court of the State of New York · 1920
- Low v. SwartwoutAppellate Division of the Supreme Court of the State of New York · 1916