153 N.Y.S. 8 | N.Y. App. Div. | 1915
In the first cause of action it is alleged that in December, 1870, one Bragaw was the owner of certain real property; that in December, 1870, Bragaw conveyed to Babette Stemmler, who gave back a purchase-money mortgage. In June, 1878, Babette conveyed to trustees to sell and apply the proceeds as in said deed set forth; ” that the trustees found it impossible to execute their trust and brought an action to have that fact decreed; that they be discharged, and that a receiver be appointed; that in August, 1875, a judgment to that effect was entered and one Stevens appointed receiver, who died in
The theory of the complaint' is that the purchaser at the foreclosure sale took the property charged with a lien for taxes and assessments in the sum of $126,267.20, and inasmuch as he
The second cause of action alleges that on or about a certain date the defendants received and collected to and for the benefit of the plaintiff over $49,000, which said sum the defendants retained and, though duly demanded, refused to pay. This is clearly insufficient, because no express promise is alleged, nor is any fact alleged from which an implied promise can be presumed. (Van Santvoord Pldgs. [2d ed.] 259, 260.)
The order appealed from should be reversed, with ten dollars costs and disbursements, and, inasmuch as the form of the motion below involved the issue of law raised by the attack on the demurrer (See National Park Bank v. Billings, 144 App. Div. 536; and cf. Godwin v. Liberty-Nassau Building Co., Id. 164), the demurrer should be sustained and the motion denied, with ten dollars costs, with leave to plaintiff to serve an amended complaint within twenty days after service of the order to be entered hereon upon payment of costs in this court and in the court below.
Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements. Motion denied, with ten dollars costs, and demurrer sustained, with leave to plaintiff to serve an amended complaint upon payment of costs in this court and in the court below.