Smith v. Wiswall

Decided October 15, 1829

The Superior Court of New York City · decided 1829-10-15

This case came before the court upon a general demurrer to the first count of the declaration, which set forth, that in and by a certain agreement between the plaintiff and the defendants, dated the 4th day of March, 1827, it was stipulated that the plaintiff should subscribe for, and take 80 lots of ground, on a certain tract in the city of New-Yorlc, called the Bloomingdale Tract, “ agreeably to “ the conditions, as set forth in said articles of subscription, and to “ pay…

Decided 1829-10-15

Per Curiam.

¶1The statement of the agreement in the declaration, is sufficient on general demurrer. The plaintiff avers performance of all the stipulations on his part, (which the demurrer admits,) and the breach assigned is of a specific character, namely, the non-payment of a certain sum of money. On a special demurrer, it might have been held that the plaintiff should set forth, more particularly, the terms of the subscription; but upon the present pleadings, there must be judgment for the plaintiff.

¶2Judgment for the plaintiff, with leave to the defendants, &c.

¶3[E. Barnes, Att'y for the plff. D. Selden, Att’y for the defts.]