National Bank of Deposit v. Rogers
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendants, Henry P. Rogers-and others, as executors, etc., of Nathaniel P. Rogers, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20 th day of March, 1899, upon the decision of the court rendered after a trial at the New York Special Term, and also from the amended judgment entered in said clerk’s office on the 17th day of April, 1899.
1Dissent
(McLaughlin, J.
(dissenting) :
I dissent. The defendants’ motion, made at the opening of the -trial to "dismiss the complaint, should have been granted, and they .could-not be deprived, without .their consent or acquiescence, of their (.exception to the refusal to dismiss, by the court’s subsequently conforming the pleadings to the proof. ■
The complaint should have been dismissed, because the facts -therein stated did not constitute a cause of action against the •defendants. The Code of Civil-Procedure provides (§ 481) that a ■complaint must contain a plain and concise statement of the facts…
2Cases cited4 opinions
- Lent v. New York & Massachusetts Railway Co.New York Court of Appeals · 1892
- Ryan v. HollidayCalifornia Supreme Court · 1895
- Van Giesen v. . Van GiesenNew York Court of Appeals · 1852
- Witherhead v. AllenNew York Court of Appeals · 1867