74 N.Y.S. 504 | N.Y. App. Div. | 1902
The complaint in this actioji avers that the plaintiff and defendants entered into an agreement to purchase stock of the International Power Company, with the intent of dispesing of the same at a profit,
The nearest approach in this complaint, however, to an averment that would authorize the interposition of equity is- a possible inference of a joint adventure. Beyond this, there is nothing in the complaint which shows a right thereto. There is no, averment in terms that the transaction was a joint adventure for the account, of all, nor that a partnership or other relation of trust and, confidence.
We think, however, that the judgment below is erroneous in dismissing the- complaint and rendering final judgment. The plaintiff should have leave to plead over.
The judgment should, therefore, be modified by sustaining the demurrer, with costs, with leave to the plaintiff to plead over within twenty days on the payment of costs' of this appeal and in the court below.
Van Brunt,. P.. J.-, Patterson, Ingraham and Laughein, JJ., concurred.
Judgment modified by sustaining the demurrer, with costs, with leave to plaintiff to plead over in twenty days on payment of costs in this court and in the court below.