Grantman v. Thrall
New York Supreme Court
APPEAL from an order entered at a special term sustaining a demurrer eto the complaint and ordering judgment in favor of the defendant. The action was brought to recover damages for a personal injury, sustained by the plaintiff in consequence of the negligence of the defendant, in leaving the opening to his coal cellar uncovered. The complaint was entitled “Jacob Grantman, by-John Grantman his guardian, agt.
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APPEAL from an order entered at a special term sustaining a demurrer eto the complaint and ordering judgment in favor of the defendant. The action was brought to recover damages for a personal injury, sustained by the plaintiff in consequence of the negligence of the defendant, in leaving the opening to his coal cellar uncovered. The complaint was entitled “Jacob Grantman, by-John Grantman his guardian, agt. George Thrall,” but it contained no allegation that the plaintiff was an infant, or that John Grantman had been appointed his guardian. The defendant demurred to the complaint on the…
1Opinion of the Court
By the Court, James C. Smith, J.
The cases of Hulbert v. Young, (13 How. Pr. Rep. 413,) and Stanley v. Chappell, (8 Cowen, 235,) cited by the respondent’s counsel, are decisive in his favor. In the former, it was held by the court, in this district, at general term, than when an infant sues by guardian, as provided by the code, the complaint must allege the due appointment of the guardian. The reason assigned is, that it is a traversable fact, and must be so stated that it may be traversed. It was also held that the defect may be reached by demurrer alleging that the plaintiff has not the…
2Cases cited1 opinion
- Hulbert v. YoungNew York Supreme Court · 1856
3Cited by4 opinions
- Crawford v. NealCalifornia Supreme Court · 1880
- Johnson v. PinegarIndiana Supreme Court · 1872
- Schillinger Fire-Proof Cement & Asphalt Co. v. ArnottNew York Supreme Court · 1891
- Albrecht v. CanfieldNew York Supreme Court · 1895