Bouton v. Wheeler
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendants, Julia T. Hilts and another, from, an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk óf the county of Tompkins on the 3d day of. August, 1906, upon the decision of the court, rendered after a trial at the Tompkins Special Term, overruling the said defendants’ demurrer to the amended complaint.
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Appeal by the defendants, Julia T. Hilts and another, from, an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk óf the county of Tompkins on the 3d day of. August, 1906, upon the decision of the court, rendered after a trial at the Tompkins Special Term, overruling the said defendants’ demurrer to the amended complaint. The plaintiff sues as trustee in bankruptcy of DeWitt T. Wheeler, and it is alleged in the amended complaint that the latter tiled a petition in bankruptcy in the office of the clerk of the Distinct Court for the…
1Opinion of the Court
Chester, J.:
The demurrer for insufficiency and lack of capacity to sue is-based upon the failure to definitely allege where or by what officer or court the order appointing the plaintiff as trustee in bankruptcy of the defendant Wheeler was made or where and when it was entered. The allegation is that h.e was “ duly appointed the trustee * * * by an order duly made on the 16tli day of- March, 1905.” It may be conceded that, under the. authorities the allegation of a mere conclusion of law on which no issue could be raised is insufficient. (Gillet v. Fairchild, 1 Den. 80; White v. Low, 7 Barb,…
2Cases cited4 opinions
- Cook v. . WhippleNew York Court of Appeals · 1873
- White v. . JoyNew York Court of Appeals · 1855
- Alkenbrack v. PeopleCourt for the Trial of Impeachments and Correction of Errors · 1845
- Jones v. SchermerhornAppellate Division of the Supreme Court of the State of New York · 1900
3Cited by1 opinion
- Hastings v. H. M. Byllesby & Co.New York Court of Appeals · 1941