Garrett v. Teller

Decided September 15, 1840

New York Supreme Court · decided 1840-09-15

<p>A plaintiff cannot disregard a plea, and treat it as a nullity, for the want of being accompanied with an affidavit of merits, unless it appear by the declaration or the plaintiff’s bill of particulars that the written instrument or record declared upon is the only cause of action upon which the plaintiff relies.</p> <p>A notice attached to a declaration on the common counts, that the suit is brought against the defendant as a party to two promissory notes, of which copies are given, is not such a specification of the only cause of action on which a recovery is claimed, as will authorize a plaintiff to treat a plea as a nullity, which is not verified by affidavit.</p>

Cited by 4 later decisions — most recently February 1850

4 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1840-09-15

View the full empirical analysis of this case →

¶1 *645By the Court,

Bkonson, J.

¶2The rule referred to by the plaintiff is expressly limited to cases “ where it shall appear by the declaration, or the plaintiff’s bill of particulars, that the written instrument or record is the only cause of action ón which the plaintiff relies.” There can be no hardship in .requiring, as we intend to do, a strict compliance with the rule. The notice did- not amount to a- bill of particulars, and the plaintiff had no right to disregard the plea.

¶3Motion granted.*

¶4 See Reynolds v. Woods, ante p. 642.