17 How. Pr. 197 | N.Y. Sup. Ct. | 1859
Although the new Code has abolished all the ancient forms of pleading, it has not abolished the necessity of written specifications, in advance of the trial, of each party’s claim or defence. (§ 140.) These specifications, too, are required to be “ definite and certain,” so as to enable the court, as well as the adverse party, to see clearly the “ precise nature ” of the case intended to be made. (§ 160.) The complaint, in particular, must contain “a plain and concise statement of the facts constituting the cause of action, without unnecessary repetition.” And without improperly uniting incongruous causes of action. (§§ 142, 144.) No irrelevant or redundant matter is to be inserted, on pain of being stricken out at the instance of “ any person,” whether a party or not, “ aggrieved thereby,” including, of course, the judge whose time and patience are thus unwarrantably taxed, to the delay and detriment of other suitors. The case, too, must not only be stated in the manner indicated, but must, when so stated, appear to be one over which the court has jurisdiction.
It is contended that the complaint in the present suit fails to conform to any of these requirements, and that the defendants, therefore, are .neither of them bound to answer the same, but are each entitled, on their separate demurrers, to a judgment of dismissal with costs. A brief outline will be necessary, to understand the nature of the objections.
Theodore Phinney, it appears, assuming the facts stated in the complaint to be true, at the time of his death, was 'a planter in Cuba, and was the owner of a large real and personal estate,
Mrs. Phinney, it is alleged, in like manner, in another place, became the sole acting executrix of the deceased, as such controls, manages and administers, as well the real as the personal estate, and (another legal inference) is responsible therefor, and for its avails and produce, having appointed Theodore W. Phinney, one of the sons, as her agent, who has “ taken upon himself the exclusive management of the estate,” and, with the “connivance and consent” of Mrs. Phinney, has “greatly mismanaged it,” to the damage of the plaintiffs $50,000 and
As to the redundancy and uncertainty, it is unnecessary further to recite the contents of the complaint, for the reason that, although serious objections to a pleading, they are not grounds of demurrer, unless the redundancy consist in the uniting óf an incongruous cause of action, or the uncertainty be so great as to present in effect no cause of action at all. In this case, no cause of action is made out against the agent of Mrs. Phinney. As her agent, he is responsible to her, and not to the other heirs or devisees. She, and she alone—there being no allegation of insolvency—is responsible for her own and her agent’s acts. That ground alone would be sufficient for dismissing the complaint as to one of the defendants. And as to the other, and as to both, legal conclusions being an inadmissible substitute for facts, the complaint, in its present shape, is equally demurrable. Whether it can be cured by amendment, it is not necessary now to determine. It is enough to say that, as it now stands, it does not state facts sufficient to constitute a cause of action in this court.
Both demurrers, therefore, for I consider them distinct and separate, must be allowed, and the complaint dismissed with costs, unless the plaintiffs elect to amend, as they may in twenty days, paying at the same time the costs of the demurrers.