Bogardus v. . New York Life Ins. Co.
New York Court of Appeals
Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of Hew York, entered upon an order made June 25, 1883, which affirmed a judgment in favor of defendant, entered upon an order sustaining a demurrer to the second count of plaintiffs complaint herein. » The substance of the complaint is set forth in the opinion. The complaint should be liberally construed. (Code of Civ. Pro., § 519; Prouty v. Whipple, 10 Week.
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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 Hew York, entered upon an order made June 25, 1883, which affirmed a judgment in favor of defendant, entered upon an order sustaining a demurrer to the second count of plaintiffs complaint herein. » The substance of the complaint is set forth in the opinion. The complaint should be liberally construed. (Code of Civ. Pro., § 519; Prouty v. Whipple, 10 Week. Dig. 387.) If the facts set forth therein present any cause of action, entitling the plaintiff to any relief, legal or equitable, a…
1Opinion of the Court
Huger, Ch. J.
The appellant asserts in the brief used on the argument, that the count of the complaint demurred to, states a cause of action ex contractu alone, and we are also of the same opinion.
It is essential to the legal statement of such a cause of action that it should show an existing contract, and the performance by the plaintiff of such conditions precedent as are thereby provided, or a tender of their performance, or some adequate excuse for non-performance. This may be done by a general allegation of performance, but in some form the fact must be alleged, and if controverted,…
2Cases cited5 opinions
- Ross v. . MatherNew York Court of Appeals · 1872
- Swett v. ColgateNew York Supreme Court · 1822
- The People v. . Empire Mut. Life Ins. Co.New York Court of Appeals · 1883
- Bonnell v. . GriswoldNew York Court of Appeals · 1877
- Moore v. NobleNew York Supreme Court · 1867
3Cited by74 opinions
- Jacob & Youngs, Inc. v. KentNew York Court of Appeals · 1921
- Greeff v. Equitable Life Assurance Society of United StatesNew York Court of Appeals · 1899
- Uhlman v. . New York Life Ins. Co.New York Court of Appeals · 1888
- Schantz v. . OakmanNew York Court of Appeals · 1900
- Ziehen v. . SmithNew York Court of Appeals · 1896
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