Ketchum v. Van Dusen
Appellate Division of the Supreme Court of the State of New York
Appeal from trial term, Warren county. Action by Ira W. Ketchum against Orrin Van Dusen to recover for breach of contract. From a judgment dismissing the complaint, entered on an order of the trial judge, plaintiff appeals.
1Opinion of the CourtHerrick, J.
When, at the commencement of the trial of an action, and before any evidence is taken, a motion is made to dismiss the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action, the question presented is one of pleading. Herbert v. Duryea, 87 Hun, 288, 33 N. Y. Supp. 1031. And such question is to be decided upon the same principles that govern the decision of a demurrer to a complaint for insufficiency. Sanders v. Soutter, 126 N. Y. 193, 27 N. E. 263; Kain v. Larkin, 141 N. Y. 144, 36 N. E. 9. A demurrer to a complaint for insufficiency can only be…
2Cases cited11 opinions
- Howard v. . DalyNew York Court of Appeals · 1875
- Kain v. . LarkinNew York Court of Appeals · 1894
- Sanders v. . SoutterNew York Court of Appeals · 1891
- Colrick v. . SwinburneNew York Court of Appeals · 1887
- Mitchell v. . ThorneNew York Court of Appeals · 1892
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3Cited by3 opinions
- Pacific Bridge Co. v. Oregon Hassam Co.Oregon Supreme Court · 1913
- Russell v. Corning Manufacturing Co.Appellate Division of the Supreme Court of the State of New York · 1900
- Coppola v. KraushaarAppellate Division of the Supreme Court of the State of New York · 1905