Yertore v. Wiswall
New York Supreme Court
Wright, Gould and Hogeboom, Justices. This was an appeal by the defendants from an order of Mr. Justice Gould, overruling a demurrer to the complaint.
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Wright, Gould and Hogeboom, Justices. This was an appeal by the defendants from an order of Mr. Justice Gould, overruling a demurrer to the complaint. The complaint averred that Ebenezer Wiswall, deceased, having a ferry license from the county court of Albany county, authorizing him to run a ferry between Troy and West Troy, undertook for the compensation provided in his license, to convey George Yertore, deceased, across the Hudson river in a skiff, run at said ferry, and carelessly and negligently upset the skiff containing the said Yertore while he was so being conveyed across said river,…
1Opinion of the Court
By the court—Hogeboom, Justice.
This action is not brought by or against either of the original parties to the transaction, and it becomes therefore essential to determine whether the cause of action survives. The complaint is inartificially drawn, which is the more to be regretted, inasmuch as the character of the cause of action must frequently depend upon the insertion or omission of particular averments in the complaint, which may be either inserted or omitted without violating the truth. Thus in an action against a common carrier— and a ferryman is a common carrier—the character of the…
2Cases cited3 opinions
- Quin v. . MooreNew York Court of Appeals · 1857
- Safford v. DrewThe Superior Court of New York City · 1854
- Burkle v. EllsNew York Supreme Court · 1849
3Cited by8 opinions
- Hegerich v. . KeddieNew York Court of Appeals · 1885
- Bates v. SylvesterSupreme Court of Missouri · 1907
- Davis v. NicholsSupreme Court of Arkansas · 1891
- In re Degaramo's EstateNew York Supreme Court · 1895
- Hegerich v. KeddieNew York Supreme Court · 1884
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