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12 How. Pr. 321

Thomas v. Desmond

New York Supreme Court

Decided April 15, 1855

New York Supreme Court · decided 1855-04-15

<p>The plaintiff brought his action on a contract for the payment of money, made by the defendant with Martin Allen and wife, and alleged his title to the cause of action as follows: that he [plaintiff] “ is now the sole owner of the said demand against the said defendant.”</p> <p>Held, that this was insufficient. It is merely an allegation of a conclusion of law. Some fact or facts should be stated, showing how the plaintiff became the owner of the demand.</p>

Relies on Russell v. Clapp

Good law ✅— No negative treatment on recordhow we know

Decided 1855-04-15

How this case has been cited

Cited by 3 later decisions — most recently January 1900

2 state decisions

10185518601870188018901900decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Welles, Justice.

¶1The action is for the recovery of money, upon a contract between the defendant of the one part,.and Martin Allen and Caroline his wife of the other part. The complaint alleges a breach, on the part of the defendant, of that contract. The only title the plaintiff shows to the cause of action is by an allegation in the complaint in the following words, viz.:—

¶2“ That the said plaintiff is now the sole owner of the said demand against the said defendant.” This I do not think is sufficient. It is merely an allegation of a conclusion of law. The defendant has a right to be informed by the complaint, how the plaintiff became the owner of the demand; whether by purchase, assignment, operation of law, or how otherwise. Some fact or facts should be stated by which it would appear how he became such owner. (Russel agt. Clapp, 7 Barb. 482; Bentley agt. Jones, 4 How. Pr. R. 202; M‘Murray agt. Thomas, 5 id. 14; Parker agt. Totten, 10 id. 233.)

¶3There must be judgment for the defendant, with leave to the plaintiff to amend his complaint on the payment of costs.

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