Simmons v. Fairchild
New York Supreme Court
APPEAL from an order made at a special term, overruling a demurrer to the complaint. The complaint, consisting of two counts, was as follows: “First.
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APPEAL from an order made at a special term, overruling a demurrer to the complaint. The complaint, consisting of two counts, was as follows: “First. The plaintiff complains against the defendants and alleges, that on or .about the 26th day of February, 1861, at the town of Perinton, in the said county of Monroe, and state of New York, the above named Peter Sines, the father of the said plaintiff, died, seised in fee of the real estate hereinafter described, [describing it;] that said deceased also left personal estate and property of the value and amount of one thousand dollars and upwards;…
1Opinion of the CourtE. Darwin Smith, J.
The question is, does the second count of the complaint sufficiently state any cause of action ? I think it does not, and that the demurrer is well taken. It is a fundamental rule in pleading, that where there are separate counts in a complaint, each must disclose a distinct right of action. Chitty says: “ The separate counts are for all purposes as distinct as if they were in separate declarations ; and consequently they must contain all necessary allegations, or the latter must expressly refer to the former.” (1 Chitty’s Plead. 413. And see Gould’s Plead. § 3, ch. 4, p. 159.) Another rule…
2Cited by7 opinions
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