18 N.Y.S. 548 | N.Y. Sup. Ct. | 1892
The opinion of the court below sufficiently states the ground upon which the judgment rendered was founded. The cases of Austin v. Goodrich, 49 N. Y. 266, and Bartlett v. Crozier, 17 Johns. 456, do not seem to have any application. All that is decided in those cases is that in order to maintain the action under the statute the facts must be alleged, bringing the plaintiff within the protection of the statute. In the case at bar the statute is pleaded, and the allegation is made that the provisions of the statute have been complied with. This is an entirely sufficient allegation, as the steps taken in complying with the statute are nothing but the evidence going to support the allegation. The judgment should be affirmed, with costs, and with leave to the defendant to withdraw the demurrer, and answer, upon payment of the costs in the court below and on this appeal.