70 N.Y.S. 796 | N.Y. App. Div. | 1901
The demurrer is interposed upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The action is brought under section 1946 of the Code of Civil Procedure. The complaint alleges that the defendants as copartners under the firm name of John C. Jessup & Co. were indebted to the firm, of Bruce & Cook in the year 1884, on three promissory notes; that on the 10th day of September, 1:891, an action was brought by the firm of Bruce & Cook against defendants upon the notes, and subsequently a judgment was recovered therein against defendant Eakins, his copartner Jessup not having been .servedthat Eakins had been released and discharged from individual liability upon the judgment upon payment of about one-third of the indebtedness of the firm; that the firm and the defendant Jessup still owe on account of said notes and judgment the sum of .$887.88; that at the time of giving the notes and recovering the judgment the firm of Bruce & Cook consisted of five members, two of whom have since died; that three of the plaintiffs in this action constituted the surviving members of the original firm of Bruce & Cook, and that
The 5th subdivision of the complaint to which the demurrer is directed contains the following allegation :
“ Fifth. That the said firm of Bruce & Cook as now constituted O and composed of the plaintiffs in this action as above mentioned, and including the said three copartners, plaintiffs in the former action, are owners, successors to, and assignees of the said judgment claim and the business and assets of the said firm as formerly constituted, and as such original and continuing partners, successors and assignees are the owners of and entitled to collect the said judgment and indebtedness unpaid thereon, and represented thereby.”
It is contended that these are allegations of legal conclusions and not of facts. The allegations that the two plaintiffs in this action, who were not plaintiffs in the former action, are now copartners with the survivors of the former firm and constitute the present firm of Bruce & Cook, are sufficient to authorize proof to establish that plaintiffs are now copartners and successors to the former firm.
These facts are pleaded according to their legal effect, which may be done at the option of the pleader, instead of averring the facts as they actually exist. (Publishing Company v. Steamship Company, 148 N. Y. 39; Brown v. Champlin, 66 id. 214; Lynch v. Second Avenue Railroad Co., 7 App. Div. 164; Spies v. Munroe, 35 id. 527; Thayer v. Gile, 42 Hun, 268.)
The ownership of personal property is a mixed question of law and fact. (Caspar v. O'Brien, 15 Abb. Pr. [N. S.] 402; De Wolf v. Williams, 69 N. Y. 621; Laserowitsch v. Reiman, 6 N. Y. St. Repr. 246.) The allegation that plaintiffs are the assignees of the judgment, claim, business and assets of the firm as formerly constituted, and as such original and continuing partners, successors and assignees, are the owners of and entitled to collect the judgment ánd indebtedness, constitutes a sufficient statement of their ownership of the claim and judgment. (Bliss Code Pl. [2d ed.] §§ 210, 211a, 213 ; Prindle v. Caruthers, 15 N. Y. 425 ; Oishei v. Craven, 11 Misc. Rep. 139; Adams, v. Holley, Admx., 12 How. Pr. 326; Allen v. Patterson, 7 N. Y. 476; Campbell v. Heiland, 55 App. Div. 95; Oldfield v. New York & Harlem R. R. Co., 14 N. Y. 310.)
■ The interlocutory judgment should be reversed, with costs, and the demurrer overruled, with costs, with leave to defendant to answer upon payment of the costs of the demurrer and of this appeal within twenty days.
Pattebson, Ingbaham, McLaughlin and Hatch, JJ., concurred.
Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to answer in twenty days on payment • of costs in this Court and in the court below.
