Etheridge v. Osborn
New York Supreme Court
The plaintiff declared in indebitatus assumpsit, for the use and occupation of certain premises, viz. a race-way, water, and water privileges, laying the indebtedness on the first day of May, 1831, and claiming the sum of $200. The declaration also contained a count upon a quantum meruit, for the use and occupation of the same premises. The defendant pleaded non-assumpsit and a specialpha, to which the plaintiff demurred.
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The plaintiff declared in indebitatus assumpsit, for the use and occupation of certain premises, viz. a race-way, water, and water privileges, laying the indebtedness on the first day of May, 1831, and claiming the sum of $200. The declaration also contained a count upon a quantum meruit, for the use and occupation of the same premises. The defendant pleaded non-assumpsit and a specialpha, to which the plaintiff demurred. Attached to the demurrer books presented to the court, by stipulation between the parties, was a bill of particulars, in which the plaintiff claimed to recover for the use…
1Opinion of the Court
By the Court,
Sutherland, J.
The objection to the plea principally relied upon is, that it professes to answer, and does-in fact answer only a.part of the declaration.
The declaration and bill of particulars show the plaintiff’s-claim to be for two years rent of the premises, commencing on the first of April, 1829, and ending on the first of April, 1831. The plea sets up a bar to the recovery of any rent which accrued on or before the first of April, 1830, but neither admits nor denies the claim for the rent of 1831. This is a fatal defect, according to the cases of Sterling v. Sherwood, 20…
2Cases cited1 opinion
- Hicok v. CoatesNew York Supreme Court · 1829
3Cited by12 opinions
- Embury v. . ConnerNew York Court of Appeals · 1850
- Le Guen v. GouverneurCourt for the Trial of Impeachments and Correction of Errors · 1798
- Greenup v. CrooksIndiana Supreme Court · 1874
- Emmons v. DoweWisconsin Supreme Court · 1853
- Baldwin v. McArthurNew York Supreme Court · 1854
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