Legal Opinion

Fox v. . the Erie Preserving Company

New York Court of Appeals

Decided June 12, 1883PublishedCited by 9 opinions

Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made the second Tuesday of June, 1882, which reversed an order of Special Term striking out an allegation in the complaint. The nature of the action, the allegation stricken out and the . material facts are set forth in the opinion! The Court of Appeals has jurisdiction to hear and determine the appeal from this order of the General Term.

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Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made the second Tuesday of June, 1882, which reversed an order of Special Term striking out an allegation in the complaint. The nature of the action, the allegation stricken out and the . material facts are set forth in the opinion! The Court of Appeals has jurisdiction to hear and determine the appeal from this order of the General Term. (Clause 5, sub. 2, § 190, Code of Civil Pro.) When there is a departure in the pleadings in the Supreme Court from those in the justice’s court, the proper remedy…

1Opinion of the CourtEarl, J.

This action was commenced by the plaintiff as commissioner of highways, in a justice’s court, to recover a penalty for obstructing an alleged highway. The defendant pleaded title and then this action was commenced in the Supreme Court. The complaint in the justice’s court contained no allegation that the defendant was a corporation. The complaint served in the Supreme Court was identical with that before served, except that it contained the allegation “ That the defendant is a corporation duly incorporated under the laws of the State of blew York.”

The defendant moved at the Special Term to…

2Cases cited1 opinion

  1. Tuthill v. ClarkNew York Supreme Court · 1834

3Cited by9 opinions

  1. Rothchild v. Grand Trunk Railway Co. of CanadaNew York Supreme Court · 1890
  2. Adams v. Lamson Consolidated Store-Service Co.New York Supreme Court · 1891
  3. Harmon v. Vanderbilt Hotel Co.New York Supreme Court · 1894
  4. Oesterreicher v. Sporting Times Pub. Co.City of New York Municipal Court · 1889
  5. Ochs v. FreyAppellate Division of the Supreme Court of the State of New York · 1900

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