23 How. Pr. 197 | The Superior Court of New York City | 1862
The Revised Statutes provide (3 R. S., 5th ed., 633, § 2) that “ if an action of assumpsit be brought for money received contrary to the provisions of any statute, it shall be sufficient * * to allege * * that the same was received contrary to the provisions of such statute, referring to the same, as prescribed in the
In the case of Morehouse agt. Crilley, (8 How. Pr. R., 431,) it was held that the form of complaint prescribed by the Revised Statutes, in case of an action for a penalty, was bad, because it was abolished by the 140th section of the Code. In the case of the Bank of Genesee agt. Patchin Bank, (3 Kern., 314,) the court of appeals held that the provision of the Revised Statutes dispensing with proof of the existence of a corporation in a trial in an action brought-by one, (2 R. S., 458, § 3,) was not repealed by the Code. In that case, Denio, J., after referring to the 140th and 471st sections of the Code, and the object of the provision in question, says : “ There are the same reasons of convenience for it now which existed under the former system, and it does not conflict with any particular provision of the Code, and therefore remains in force.” In the case of The
The question in this case, therefore, is, whether the form of declaring, prescribed in the Revised Statutes, is not a plain and concise statement of the facts constituting the cause of action in this case, and this stands entirely aloof from the question whether it is sufficiently definite and certain; whether times, places, amounts, persons, contingencies and events are sufficiently described to notify the defendant of the identity of the transaction aimed at, is to be determined by a different mode of proceeding; that raises the question of degree in regard to the plainness of the statement, as a motion to strike out redundant matter does as to its conciseness ; but the question under consideration is, whether a charge of a receipt of certain of the plaintiff’s money contrary to the provisions of a particular statute specified therein, is not a statement of facts constituting a cause of action, and the statute allowing such a form is not in substance applicable to a provision requiring such a statement. The authors of the Code undoubtedly meant only to require parties in their pleadings to show generally that they had a good cause of action, unless the adverse party complained of not being sufficiently notified of the particular transaction; the remedy for the first defect being a demurrer, and the second a motion.
It would seem, therefore, that a charge of receiving the plaintiff’s money contrary to the statute of betting and' gaming, with the statement of any other circumstances necessary to make it definite and certain, such as' time, amount and person, and the like, would be a sufficient statement of facts constituting the cause of action, without stating the particular contingency on which the money was staked, or other details, at least on an objection which only raises the question that nothing was stated from which the court could perceive there was a cause of action. I think, too, that the provision of the Revised Statutes allowing such a general form of declaring was, in substance, appli
I cannot, therefore, doubt that the form prescribed by the Revised Statutes is such a plain statement of the facts constituting a cause of action as not to be, under the Code, objectionable for not containing facts sufficient to constitute such cause ; and that, if indefiniteness prevails, it is to be amended by motion, not on demurrer.
It is true, the provisions of the Revised Statutes preserve the distinction of forms of action in debt and assumpsit, but this, in fact, affects the substance, because debt is brought for penalties by the parties injured, or for money lost by an informer, while assumpsit was only maintainable by the party injured to recover back his own money; and this distinction is observed in the two prescribed forms ; that in case of debt, requiring the plaintiff to state an indebtedness by which an action has accrued, and that in case of assumpsit, permitting the aggrieved party to declare for money of his received.
The demurrer must be overruled, with costs, and judgment for the plaintiff, with liberty to the defendant to amend on payment of such costs.