Tracy v. Tracy

• Court: Superior Court of New York
• Writing for the Court: Macomber, J.
• Citation: Tracy v. Tracy, 12 N.Y.S. 665 (N.Y. Super Ct. 1891)
• Decision Date: 23 January 1891
• Parties: Tracy v. Tracy

12 N.Y.S. 665

Tracy v. Tracy

Supreme Court of New York, General Term, Fifth Department

January 23, 1891

Appeal from special term, Allegany county.

Action by Seth H. Tracy against Solomon H. Tracy. From an order and interlocutory judgment overruling a demurrer to certain causes of action stated in the complaint, defendant appeals.

Rufus Scott, for appellant.

Loveridge & Leggett, for respondent.

Argued before Dwight, P. J., and Macomber and Corlett, JJ. All concur

OPINION

Macomber, J.

The defendant demurred to the first, second, third, fourth fifth, sixth, ninth, tenth, and eleventh counts or causes of action stated in the plaintiff's complaint, on the ground that they severally fail to state facts sufficient to constitute a cause of action. The second, third, fourth, and fifth causes of action are, undoubtedly, sufficiently stated. Each of them contains an allegation of an indebtedness owing by the defendant to the plaintiff upon contract. The language of each count is that the "defendant is indebted to this plaintiff." Then follow the particulars of such indebtedness in each instance. Section 531, Code Civil Proc. The decision in respect to the other causes of action namely, first, sixth, ninth, tenth, and eleventh, stated in the complaint, rests upon different considerations. The first cause of action is for professional services as attorney and counselor at law. The allegation is that, from the year 1871 to and including the year 1882, the plaintiff, at the request and under the retainer and employment of the defendant, rendered to the latter services as a lawyer; giving the items thereof. There is no allegation that the services were not paid for as they were rendered, nor any other allegation tending to show a breach of the contract made by the defendant. The sixth cause of action is based upon an alleged renting, in the year 1884, by the plaintiff to the defendant, of a harness used by the latter for two years, in which the same was materially injured and depreciated in value to an amount therein stated. In this instance there is no allegation of a failure on the part of the defendant to pay for such use. The ninth cause of action is upon a promissory note alleged to have been made by the defendant, whereby, six months after the date, (viz., 2d day of July, 1883,) the defendant promised to pay to the plaintiff or bearer $ 100, with interest, for value received, and then and there delivered the said note to the plaintiff. The tenth and eleventh causes of action are upon other notes, under like allegations. In neither instance is there an allegation that the note remains unpaid, or that the defendant failed to pay it, or that he is indebted to the plaintiff for any sum of money upon either of these instruments.

The special term, in deciding against the sufficiency of the demurrer in respect to the causes of action demurred to other than the second, third, fourth, and fifth, deemed itself bound by the decision of the case of Salisbury v. Stinson, 10 Hun 242. In that case the general term of the first department held that a complaint alleging that the plaintiff "sold and delivered to the defendant certain goods of the value, and...