124 A.D. 891 | N.Y. App. Div. | 1908
The following is the opinion of the court below upon the original argument:
The first cause of action in the complaint attempts to set forth either two causes of action or two items of damage arising from one cause of action. The defendants demur to it on two grounds, as follows: (a)'That it fails to state facts sufficient to constitute a cause or causes of action: (b) that in it are improperly joined a cause of action for a tort and one on a contract, both of which do not arise out of the same transaction. After a careful consideration of
The following is the opinion in the preceding case upon a reargument:
Pleading — complaint — test on demurrer 'for insufficiency — theory of pleader immaterial.
The well-settled rule of testing a complaint on demurrer for insufficiency requires the complaint to be upheld if it states facts sufficient to constitute a good cause of action of any kind whatsoever (Abbey v. Wheeler, 170