Ehel v. Smith

3 Cai. Cas. 187 | N.Y. Sup. Ct. | 1805

Per curiam, delivered bjr

Thompson J.

. This .case comes before the court on certior aru Several exceptions have been taken to the return. We shall confine ourselves to that which relates to the declaration.

The account delivered must necessarily be taken as the plaintiff’s declaration, otherwise he sets forth no specific demand to which the defendant could answer. Although a plaintiff in a justice’s court ought not to be held to technical niceties in declaring, yet he ought to make it appear, that he has a sufficient foundation for bringing his action. and not by his own shewing, disclose that his demand was jjjegaj^ jgy t^e genera} terms “ tavern expenses,” the court must necessarily intend such charges as are prohibited ⅛ ^ section of the act pleaded in bar. Had he declared on a common book account, it might have been incumbent on the defendant, to shew that the account was for tavern- expenses, and the court here might intend, in favor of the judgment⅜ that he failed in doing that. But when the declaration states the demand to be tavern expenses, it lay with the plaintiff to disclose that the defendant-was u a traveller or lodger in his house,” in order to bring his account within the exceptions in the act, and give hiin a right of recovery. Not'having done this,.his demand, from his own shewing,- was illegal,- and the judgment in the court below, cannot be' maintained ; more especially as it appears expressly by the return, that three dollars and eighty two cents of the recovery was for tavern expenses. This precludes us from making any intendment that the illegal charges were rejected.* The judgment must therefore be reversed.

N. B. Gold delivered error books to all the judges, who said this was not prohibited from being done, but that they Would not be allowed for on taxation.