Legal Opinion

Smith v. Merwin

New York Supreme Court

Decided May 15, 1836PublishedCited by 5 opinions

Demurrer to declaration. The declaration contained two counts. The first was in case, for damages sustained by the plaintiff in consequence of the non-attendance of the defendant as a witness when duly subpoenaed, concluding by claiming $ 1000 as such dam ages, according to the provisions of part 3, ch. 7, tit. 3, art. 6, §43 of the revised statutes.

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Demurrer to declaration. The declaration contained two counts. The first was in case, for damages sustained by the plaintiff in consequence of the non-attendance of the defendant as a witness when duly subpoenaed, concluding by claiming $ 1000 as such dam ages, according to the provisions of part 3, ch. 7, tit. 3, art. 6, §43 of the revised statutes. The second count was in debt for $50, stating that an action had accrued to the plaintiff to demand that sum from the defendant according to the provisions of part 3, ch. 7, tit. 3, art, 6, §43 of the, revised statutes, and alleging non-payment…

1Opinion of the Court

By the Court,

Nelson, J.

The first count of the declaration is in case, concluding with a reference to the statute, 2 R. S. 400, §43, which gives “ the proper action ” for the injury complained of. This act is merely declaratory of the common law, and the reference to it in the declaration is immaterial, but yet we cannot say such reference is objectionable, as the plaintiff may put his case upon the statute if he see fit. A special action on the case is the appropriate remedy,where damages are sought to be recovered by the aggrieved party. 2 Doug. 566. 1 Phil. Ev.4. 1 Archb.172. 1 Campb. 14. 9…

2Cases cited1 opinion

  1. Pennington v. TownsendNew York Supreme Court · 1831

3Cited by5 opinions

  1. Ragsdale v. BowlesSupreme Court of Alabama · 1849
  2. Ferrett v. AtwillU.S. Circuit Court for the District of Southern New York · 1846
  3. People v. BennettNew York Supreme Court · 1857
  4. Fernald v. GarvinSupreme Judicial Court of Maine · 1867
  5. Shattuck v. Guardian Trust Co.Appellate Division of the Supreme Court of the State of New York · 1911

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