Legal Opinion

Tooker v. . Arnoux

New York Court of Appeals

Decided March 18, 1879PublishedCited by 40 opinions

Appeal from, judgment of the General Term of the Court of Common Pleas, in and for the city and county of New York, affirming a judgment in favor of plaintiff, entered upon a verdict. ,,The facts alleged in the complaint were as follows : ' “First.—That on or about the 25th day of July, 1872, at the city of New York, James Watson made and delivered to the plaintiff for value his certain draft or order, in the words and figures following : “New York, July 25, 1872. “William…

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Appeal from, judgment of the General Term of the Court of Common Pleas, in and for the city and county of New York, affirming a judgment in favor of plaintiff, entered upon a verdict. ,,The facts alleged in the complaint were as follows : ' “First.—That on or about the 25th day of July, 1872, at the city of New York, James Watson made and delivered to the plaintiff for value his certain draft or order, in the words and figures following : “New York, July 25, 1872. “William Henry Arnoux : “ Dear Sir—Please pay to William T. Tookcr the sum of five hundred and fifty-six (556) dollars, out of the…

1Opinion of the CourtRapallo, J.

At the opening of the trial the defend-ant moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The motion was denied and exception taken. The reason assigned was that the defendant should have demurred.

This position is in conflict with section 148 of the Code and with many decisions of this court. If the complaint was bad in substance the objection was available on the trial and the motion to dismiss should have been granted. (Schofield v. Whitelegge, 49 N. Y., 259; Coffin v. Reynolds, 37 id., 640; Emery v. Pease, 20 id., 62.)

■We…

2Cases cited4 opinions

  1. Bate v. . GrahamNew York Court of Appeals · 1854
  2. Scofield v. . WhiteleggeNew York Court of Appeals · 1872
  3. Munger v. . ShannonNew York Court of Appeals · 1874
  4. Conkling v. GandallNew York Court of Appeals · 1864

3Cited by40 opinions

  1. Schmittler v. . SimonNew York Court of Appeals · 1886
  2. Pope v. Terre Haute Car & Manufacturing Co.New York Court of Appeals · 1887
  3. Allis-Chalmers Manufacturing Co. v. Malan Construction Corp.New York Court of Appeals · 1972
  4. Brown v. Cow Creek Sheep Co.Wyoming Supreme Court · 1912
  5. Forker v. BrownNew York Court of Common Pleas · 1894

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