Legal Opinion

Livingston v. Smith

New York Supreme Court

Decided December 15, 1855PublishedCited by 9 opinions

Wright, Watson and Harris, Justices. This was an appeal from an order made at a special term, allowing a demurrer to the complaint.

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Wright, Watson and Harris, Justices. This was an appeal from an order made at a special term, allowing a demurrer to the complaint. The plaintiff stated in her complaint, that in 1849, it was agreed between her and her brother Daniel P. Southerland, now deceased, that they should purchase for their joint benefit, a certain lot of land in. the village of JVest Troy: that the contract for such purchase should be made in the name of Southerland, but he should hold it for their joint benefit: that he did enter into a contract with Isaac Merritt, executor, &c~, of Richard P. Hart, deceased, on the…

1Opinion of the Court

By the court—Harris, Justice.

The great requirement of the Code, in respect to a complaint, is that it shall state facts sufficient to constitute a cause of action. The allegations must be such that the court can see that, if they are admitted or proved, the plaintiff will be entitled to judgment, unless the cause of action is overcome by some new matter of defence.

In this case, it is stated that a contract was made between the plaintiff and Daniel P. Southerland, This contract is the foundation of the action. If there be no such contract there is no cause of action. But it is a contract…

2Cases cited5 opinions

  1. Cozine v. Graham & BleekerNew York Court of Chancery · 1830
  2. Elting v. VanderlynNew York Supreme Court · 1809
  3. Myers v. MorseNew York Supreme Court · 1818
  4. Le Roy v. ShawThe Superior Court of New York City · 1853
  5. Thurman v. StevensThe Superior Court of New York City · 1853

3Cited by9 opinions

  1. Dixon v. DukeIndiana Supreme Court · 1882
  2. Jenkinson v. City of VermillionSouth Dakota Supreme Court · 1892
  3. Berrien v. SouthackCity of New York Municipal Court · 1889
  4. Shea v. KeeneyAppellate Division of the Supreme Court of the State of New York · 1913
  5. Betts v. BacheThe Superior Court of New York City · 1862

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