Western Union Telegraph Co. v. Milliken

14 Daly 170 | New York Court of Common Pleas | 1887

Per Curiam. — [Present, Larremore, Ch. J., Allen and Bookstaver, JJ.]

—It is now well settled in practice that a pleading to which a demurrer has been interposed must be its own mouth-piece. The complaint in the action sets up a running account between the parties, which the defendants admit to the extent of-$4.11, but set up a counterclaim as a defense, to wit:

That on or about May 16th, 1884, plaintiff delivered to the defendant, Robert Milliken, a telegraphic message by .mistake, which was not intended for him, upon which he acted, and upon which he sustained a loss, the amount of which these defendants seek to recoup, against the plaintiff’s claim. The answer avers- that, through inattention, the plaintiff changed and altered said message, and wrongfully and negligently delivered the same, which was not intended for them, to these defendants. This averment in the answer characterizes the nature of the action as one of tort and not of contract.

There is nothing jn the case as presented to show any privity of contract between the plaintiff and the defendants. The cause of action set up in the counterclaim, if it can be sustained at all, must be for negligence, and upon this point this case is distinguishable from the authorities cited in its support.

We think the demurrer should have been sustained, and that the judgment overruling it should be reversed, with costs.

Judgment overruling demurrer reversed, with costs.