15 Barb. 32 | N.Y. Sup. Ct. | 1853
It is not sufficient to allege that the defendant is indebted to the plaintiff in a certain amount. (Wilson v. McHurd, MS. Hall v. Southmayd, MS. Cady. J.) The cause of the debt must be stated. (Bailey v. Freemen, 4 John. 280. Woodford v. Deacon, Cro. Jac. 206. Buckingham v; Cosiendine, Id. 214. Mayor v. Harre, Id. 642. 1 Vin. 342. 1 Chilly’s PI. 300.) Whether a statement of the cause of action substantially in the form of the common counts in indebitatus assumpsit, is now a proper mode of pleading, seems not to be fully settled. (Garvey v. Fowler, 4 Sandf. R. 665. And see Eno v. Woodworth, 4 Comst. 253, Bronson, J.; Glenny v. Hitchins, 4 How. R. 98; McMurray v. Gifford, 5 Id. 14; Van Santvoord’s Plead. 150, et seq.) The facts no doubt must be stated. Is it sufficient under the code, if stated in the form of the common counts in assumpsit ?
In a great many cases, where a legal obligation exists, the law will imply a promise. This has been stated to be an inference or conclusion of law from the legal liability. (Gould’s Pl. 330.) But the learned reporter of Kinder v. Paris, (2 H. Bl. 562, n,) says, that from the antecedent- debt or duty, the law presumes the defendant did in fact promise to pay. And
Thp code has abolished “ all the forms of pleading heretofore existing,” but has not forbidden the use of the same language, when it best gives a plain and concise statement of the facts constituting the cause of action. If all the cases of executed contracts, and of implied promises, are to be placed upon the same footing as open and executory contracts, the code has revived a great deal of special pleading. If the common counts are yet allowed, it is a different question whether the plaintiff can prove every cause of action under them, that might have been proved in assumpsit.
These forms obtained sanction, when great attention was paid to logical pleading, and maintained their place for a long
Hand, Justice.]
And the common count in assumpsit was applicable to use and occupation.' (Wilkins v. Wingate, 6 T. R. 62. Stroud v. Rogers, Id. note. King v. Fraser, 6 East, 348. 1 Saund. R. 203, n. c.) But this" complaint does not state a cause of action, even under those counts. An action for use and occupation is founded Upon contract, express or implied, and lies only where the relation of landlord and tenant exists. (Croswell v. Crane, 7 Barb. 203. Bancroft v. Wardwell, 13 John. 489. Osgood v. Dewey, Id. 240. Smith v. Stewart, 6 Id. 46. 1 Wend. 134. Chitty on Cont. 331. Taylor, L. & T. § 636. 1 R. S. 748.) Title in the plaintiff, and use and occupation by the defendant, are not enough. For certain purposes, the occupation of land is deemed to be under and in subordination to the legal title. (2 R. S. 293.) But it does not appear by this complaint that the defendant held under the plaintiff. All the facts stated may be true, and there be no relation of landlord and tenant. The demurrer is sufficient in form.
There must be judgment for the defendant, with leave to amend on the usual terms.
Judgment for defendant.