PLEADING- Continued.

PAGE.

Held, that the cause of action, if any, alleged in the complaint was not
for the breach of a covenant to pay a certain sum of money, but for the
breach of a covenant to sell the securities and that they would realize a
certain minimum sum; that, there being no allegation in the complaint tend-
ing to show that the plaintiff had suffered any damages whatever by reason
of the breach of this covenant of sale, the complaint did not state facts
sufficient to constitute a cause of action.

--

GAUSE v. COMMONWEALTH TRUST CO... . . .

5. A complaint alleging that the plaintiff's had a lien on goods, and that
the defendant received them with notice thereof, and that the amount payable
therefor belonged to the plaintiffs, states a cause of action implied promise.]
The complaint in an action alleged that the plaintiffs had an agreement with
the J. Freeman Brown Company by which they agreed to make loans and
advances to that company, to be secured by a pledge of merchandise belong-
ing to the latter and the proceeds of the sale of said merchandise; that it was
part of the agreement, and also the regular course of dealing between the
parties, that the plaintiffs would authorize the Brown Company from time to
time to deliver to purchasers merchandise pledged under the agreement, but
that the plaintiffs consented to such deliveries on the sole condition that the
purchaser should be given notice at the time of the receipt of the goods that
the plaintiffs had an interest therein or a lien thereon, and that the purchase
price was payable only to the plaintiffs.

The complaint further alleged that at the time specified the plaintiffs
authorized and permitted the Brown Company to deliver to the defendant
company merchandise pledged under the agreement, and that such mer-
chandise was delivered to the defendants and accepted and retained by
them, with notice that the plaintiffs had a lien thereon or interest therein
and that the amount due therefor was payable only to the plaintiffs."

64

Held, that the complaint stated a cause of action for the value of the
goods;

That an implied promise on the part of the defendant to pay the plain-
tiffs for the goods was to be inferred from the allegation that the goods were
accepted with knowledge of the plaintiffs' relation to them, and with knowl
edge of the fact that the proceeds of the goods were to be paid to the plain-
tiffs. THALMANN v. CAPRON KNITTING CO...

6. Plea of a recovery for the same cause by third persons claiming to be
assignees of the present plaintiff when it is insufficient.] After an order of
arrest issued in an action brought by one Arnold against one Cassidy had
been vacated, Cassidy brought an action against Arnold, and the sureties on
the undertaking given by the latter to obtain the order of arrest, for false
arrest. The sureties interposed an answer, which, after making certain
admissions and denials, stated that the sureties, Further answering the
said complaint and by way of counterclaim and setoff," allege that "prior
hereto" an action was brought by the attorneys who appeared for the plain-
tiff herein and who in the former action appeared for him as defendant,
against Arnold and themselves as sureties in the Municipal Court upon the
undertaking, "claiming that the said Cassidy had assigned to them any
and all claims" against them upon the undertaking; that such action had
resulted in a judgment against the defendants and that an appeal from such
judgment was pending in the Appellate Term. The answering defendants
claimed the right to set off on behalf of themselves and Arnold any recovery
in the action brought by the attorneys of the present plaintiff and demanded
that the complaint be dismissed, with costs.

The answer did not allege that the undertaking was in fact assigned to the
attorneys, or that the Municipal Court action was commenced prior to the
present action.

Held, that the new matter set up in the answer was not sufficient either as a
complete or partial defense or as a counterclaim. CASSIDY v. ARNOLD.....

7. A complaint alleging that "the defendant promised the plaintiff to so
marry her on his request" is demurrable.] A complaint in an action for the
breach of a promise of marriage alleged that on a specified date, in consid-
eration that the plaintiff, who was then a sole and unmarried woman, at the
request of the defendant, agreed and would marry him on such request,

427

247

412

PLEADING - Continued.

PAGE.

" that

the defendant promised the plaintiff to so marry her on his request;
subsequently the plaintiff requested the defendant to marry her, but that
the defendant, disregarding his promise and undertaking, refused to do so, to
the plaintiff's damage in the sum of $50,000.

Held, that the complaint did not state a cause of action, for the reason that
the only promise alleged to have been made by the defendant was that he
would so marry her (the plaintiff) on his (the defendant's) request," the
effect of which was simply to give the defendant a mere option to marry
the plaintiff without any corresponding obligation to do so, and that conse-
quently the contract lacked the mutuality which is necessary where the con-
sideration thereof consists of mutual promises. SMYTH v. GREACEN........ 275
8. The mere assertion of ownership by a pledgee is not a conversion, nor
d. es it entitle the pledgor of property to sue for damages.] The complaint in an
action alleged that the plaintiff's assignor transferred real and personal prop-
erty to the defendant as security for loans, and that the defendant subsequently
asserted absolute title to the pledged property. The plaintiff demanded
judgment for the value of the pledged property over and above the amount
of the loan. The complaint did not allege that the defendant had disposed
of any of the pledged property, or that the plaintiff or his assignor had
tendered the amount of the loan and interest and demanded the return of
the property.

Held, that the complaint was demurrable;

That the mere assertion of title did not constitute a conversion of the per-
sonal property, and that there could be no conversion of the real property;
That the mere assertion of title did not confer on the plaintiff an election
to treat the transfers as sales and to recover the value of the pledged property
over and above the amount of the loan. BROWN v. LEARY..

9. When allegations of conspiracy to injure the plaintiff, and of libel,
slander, false imprisonment and abuse of process state a single cause of action.]
The complaint in an action alleged that the defendants entered into a con-
spiracy and an illegal combination to injure the plaintiff, and that in pur-
suance of such conspiracy and illegal combination the defendants had been
guilty of certain overt acts towards the plaintiff consisting of slanderous
words uttered and of libels published, and of an illegal arrest amounting in
law to a malicious prosecution and an abuse of legal process, and alleged that
damages in a specific sum had resulted therefrom.

Held, that the complaint stated a single cause of action for conspiracy
resulting in acts causing injury to the plaintiff, and was, consequently, not
demurrable on the ground that causes of action for slander and libel were
improperly joined with causes of action for malicious prosecution and abuse
of process. GREEN v. DAVIES..

....

10. Charges of slander, libel, malicious prosecution and abuse of process,
treated as specific causes of action, cannot be joined in the same complaint.]
Semble, that if the slander, libel, malicious prosecution and abuse of process
were to be treated as specific causes of action they could not be joined in
the same complaint. Id.

11. Allegations that plaintiff was hired for a year, beginning January
1, 1900, are not sustained by proof of an employment several years before that
date and its annual continuance.] Where the complaint in an action, brought
to recover damages for the breach of a contract of employment, alleges that
the defendant hired the plaintiff for a term of one year, beginning January
1, 1900, and that it discharged him without cause prior to the expiration of
said year, the plaintiff cannot, without amending his complaint, recover
upon proof that several years prior to the year 1900 he had been hired by
the defendant for a year, and that his services during the year 1900 rested
upon an annual continuation of the relations created by the previous con-
tract. TREFFINGER 0. GROH'S SONS....

.....

12. Effect of a judgment absolute for the plaintiff, entered on an appeal
to the Court of Appeals from an order granting a new trial.] Where, in an
action to recover damages for personal injuries, the court, at the close of the
plaintiff's evidence, grants a nonsuit, and, upon the reversal of the judgment
of nonsuit by the Appellate Division, the defendant takes an appeal to the
Court of Appeals, giving the usual stipulation for judgment absolute in case

421

359

433

PLEADING -- Continued.

PAGE.

of the affirmance of the judgment, the effect of the entry of a judgment
absolute in accordance with the stipulation is the same as if the defendant
had made default in pleading, and the sole question left is as to the amount
of the plaintiff's damages. WOOD v. N. Y. CENTRAL & H. R. R. R. Co.... 226
13. Scope of stipulation for judgment absolute.] The stipulation for
judgment absolute will be deemed to have been given upon the assumption
that the damages will be confined within the allegations of the complaint as
they existed at the time that the stipulation was made. Id.

14. Terms imposed as a condition of granting an amendment of the
complaint after entry of a judgment absolute.] A motion made by the plaintiff
after the entry of judgment absolute for leave to amend his complaint by
setting up an element of damages not alleged in the original complaint, will,
notwithstanding that the plaintiff was permitted, without objection, to give
evidence upon the trial as to this element of damages, be denied un'ess the
plaintiff stipulates that all proceedings in the action subsequent to the service
of the original complaint be vacated and set aside, and pays the defendant all
costs incurred from the time of the service of the original complaint. Id.

15.

- Allegations in detail as to a transfer to the plaintiff of a contract
by a party who entered into it with the defendant.] Where the complaint in
an action brought to enforce a contract set forth in full the various steps,
including the legal instruments, by which the contract had been transferred
to the plaintiff, the court, in view of the unusual method by which the
transfer had been effected, refused to strike out of the complaint the alle-
gations of the various steps referred to, notwithstanding that it was quite
probable that the plaintiff could have formulated a general allegation suf-
ficiently alleging the transfer of the contract to it.

16.

POPE MFG. Co. v. RUBBER GOODS MFG. CO. (No 2).......

.....

Motion to make a pleading definite and certain, where no particular
clauses thereof are specified, denied.] When, in such an action, it is proper
for the court to deny a motion, made by the defendant to require the plain-
tiff to make his complaint more definite and certain, which motion did not
specify any particular clauses of the complaint which were indefinite or
uncertain, but asked generally to require the plaintiff to show clearly what
the plaintiff intended to claim in relation to the performance of the contract
or its modification, considered. Id.

17.

Motion to strike out redundant matter—not granted where there
exists only reiteration.] The court is not justified in striking out portions
of a reply as redundant and irrelevant where it is not claimed that the
matter in question is immaterial to the issue, and the only objection thereto
is that averments have been reiterated in several instances, and it does not
appear that the defendant will be prejudiced in its defense if such matter
is permitted to remain.

18.

POPE MFG. Co. v. RUBBER GOODS MFG. CO. (No. 1)..

A reply is not available to sustain a plaintiff's affirmative cause of
action] A plaintiff cannot, as a part of his affirmative cause of action,
avail himself of averments contained in his reply to a counterclaim inter-
posed by the defendant, if such averments are inconsistent with his com-
plaint. Id.

19. Allegations in a complaint of performance of a contract except in
certain particulars — other particulars mentioned in a reply are not available
to the plaintiff.] Thus, where the plaintiff in an action on contract pleads
performance except in certain particulars, as to which it has alleged modifi-
cations of the contract or a waiver of performance, it cannot, upon the
trial, take advantage of other waivers and modifications not pleaded in the
complaint, even though they are set out in the plaintiff's reply to a counter-
claim contained in the answer. ld.

20.

A pleading should be complete in itself — it should not consist of
references to numbered paragraphs in another pleading.] A pleading should
be complete in itself. It should not, by a reference, by paragraph number
37

APP. DIV.-VOL. C.

353

349

PLEADING — Continued.

-

PAGE

only, to averments contained in another pleading, make it necessary to exam-
ine such other pleading. Id.

21.

Stipulation of counsel to violate this rule, not sustained.] The fact
that the parties have, by stipulation, acquiesced in a pleading which vio-
lates the last-mentioned principle, does not oblige the court to acquiesce
therein. Id.

Action by one of three parties of the first part to a contract, against
the third parties thereto - where the terms of the contract are such, in
form, as to signify a joint interest in the parties of the first part, it must be
alleged and proved to be several. FISHER TEXTILE Co. v. PERKINS..

See PARTY.

Action by a corporation against its president-the latter cannot give
away merchandise belonging to the former he is liable upon an implied
contract for any merchandise of the corporation given away by him.
WORTHINGTON v. WORTHINGTON..

See CORPORATION.

Receiver in supplementary proceedings - he may sue directors of a
corporation, indebted to the judgment debtor, for a failure to file an annual
report-he need not plead the giving of notice of an intention to do so.
BOYNTON v. SPRAGUE........

See RECEIVER.

PLEDGE-Negotiable paper

-

the holder's rights are determined not on the
basis of carelessness but of good faith-pledge by a note broker of his
customer's note, placed in his hands for sale, as collateral to his own.
HAMILTON NATIONAL BANK v. UPTON.

See BILLS AND NOTES.

19

332

443

105

The mere assertion of ownership by a pledgee is not a conversion, nor
does it entitle the pledgor of property to sue for damages. BROWN v. LEARY. 421
See PLEADING.

PRACTICAL LOCATION — Of boundaries.

See VENDOR AND PURCHASER.

-

-

PRACTICE Appointment of a committee of an incompetent -
-a motion
therefor not noticed for the first day of the term — order to show cause granted
returnable the next day — recital therein, through inadvertence, that the applica-
tion was dismissed - service of notice of the first application on the incompetent
service of the order to show cause on his attorney.
See MATTER OF MAGINN.....
When an order adjudging a party guilty of contempt may be vacated
upon motion.
- when on such a motion the question as to the service of the order
amending the judgment and the duty to comply therewith, not considered.
See KELLER v. KELLER...

Delivery of his report by a referee in ignorance that the defendant's time
to file a brief had been extended by stipulation - the case should be sent back to
the referee.

230

325

See MERCANTILE NAT. BANK OF N. Y. v. SIRE....
When the bringing of an action constitutes such a demand as liquidates
the damages recoverable in an action, considered.

See BRAAS v. VILLAGE OF SPRINGVILLE.

197

An interlocutory judgment sustaining a demurrer to a complaint should

be based upon a decision, not upon an order.

See STODDARD v. BELL & Co.......

389

-

Interlocutory judgment on demurrer — it should be entered on a decision
the decision is not appealable.

See BROWN v. LEARY...

421

In regard to the review of adjudication.

See APPEAL.

Relating to arrest.

See ARREST.

PRINCIPAL AND AGENT Pledge by a note broker of his customer's
note, placed in his hands for sale, as collateral to his own when the note is
enforcible by the pledgee.] 1. In an action brought to recover upon a promis-
sory note made by the defendants, a firm of coal dealers in the city of Roches-
ter, it appeared that the plaintiff was a national bank in Chicago and had
acquired the note before maturity from one Kemper, a note broker; that the
note which had been sent to Kemper to be sold for the defendants' account
had been pledged by Kemper to the bank as collateral security for his own
existing indebtedness to the bank. The officers of the bank had no informa-
tion that Kemper was not the absolute owner of the note. They knew that he
was a dealer in commercial paper and that he was reputed to be worth
$25,000. They had previously discounted over thirty notes at his request
and supposed him to be the owner of each of them.

It further appeared that one of the defendants called on the plaintiff bank
with Kemper before the note in suit had been accepted by the bank; that
at this time the bank held one note of $5,000, made by the defendants,
which Kemper had used as collateral, and another which the bank had dis
counted; that Kemper, in the presence of the said defendant, stated to the
bank officers that if the bank at any time desired the money on either of these
notes before maturity it should advise the defendants and the note would be
taken up.

Held, that the court properly directed a verdict in favor of the plaintiff;
That the plaintiff was a holder for value, and that the circumstances sur-
rounding the negotiation of the note were not so suspicious and unusual as
to make the question of the plaintiff's good faith one of fact for the jury to
pass on. HAMILTON NATIONAL BANK v. UPTON.

2. When a client is chargeable with the knowledge of his attorney not
obtained in his service.] To bind a client with knowledge which his attorney
acquired in some other transaction, not relating to his client's business, the
burden is upon the person claiming such notice to show that such knowledge
was present in the mind of the attorney at the time he acted for the client.
MATTHEWS 0. DAMAINVILLE,

3. A person, not a party to a sealed contract, cannot be sued thereunder.]
A person not a party to a contract under seal, and whose name is not men-
tioned therein, cannot be held liable as the undisclosed principal of one of the
parties signing such contract, even though a seal was not essential to the
validity of the contract. SPENCER. HUNTINGTON....

An agreement by the president of a bank that the maker or indorser
of paper will not be required to pay it, is valida bank officer cannot, how-
ever, bind the bank when his act is in his individual interest and is adverse
to the bank - knowledge so obtained by the bank officer does not bind the
bank. BANK OF LE ROY v. PURDY.

See BANKING.

105

311

463

64