Queen v. Benesch
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Emmet Queen, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 28th day of June, 1919, upon the dismissal of the complaint by direction of the court at the opening of the trial.
1Opinion of the Court
Page, J.:
The defendant at the opening of the trial challenged the sufficiency of the complaint, in that the cause of action is based upon a contract, a copy of which is annexed to the complaint, and that the contract does not sustain the theory of the complaint. The cause of action is for a violation of the contract which is by appropriate reference made a part of the complaint. Where this is done, if there is a variance between the contract and the allegations of the complaint, the terms of the contract must control; therefore, we may disregard the allegations of the legal effect of the…
2Cases cited4 opinions
- Sage v. . CulverNew York Court of Appeals · 1895
- Rubin v. SiegelAppellate Division of the Supreme Court of the State of New York · 1919
- Potthoff v. Safety Armorite Conduit Co.Appellate Division of the Supreme Court of the State of New York · 1911
- Stabilimento Metallurgico Ligure v. JosephAppellate Division of the Supreme Court of the State of New York · 1919
3Cited by4 opinions
- Lovett v. Frederick Loeser & Co.City of New York Municipal Court · 1924
- Burdick v. FullerAppellate Division of the Supreme Court of the State of New York · 1921
- Welch v. T. W. Warner Co.District Court, S.D. New York · 1930
- Cahill v. ReganAppellate Division of the Supreme Court of the State of New York · 1957