Hopper v. Erslev

Decided April 15, 1893

The Superior Court of New York City · decided 1893-04-15

Plaintiff in March, 1891, filed a mechanic’s lien against premises, described therein ; in April, 1891, defendants Hauifi and Midler, as principals, and Erslev and Updike, as sureties, gave a bond to discharge the same. In an action afterwards, brought to enforce said lien, judgment was rendered for plaintiff, and on defendants’ failure to pay the same this action was brought to recover on the bond.

Decided 1893-04-15

Dugeo, J.

¶1This is an appeal from a judgment for plaintiff entered upon an order overruling a demurrer to the complaint as frivolous.

¶2The order is brought up for review by the notice of appeal.

¶3Unless the demurrer is clearly bad upon its face it should not have been overruled upon the motion.

¶4The failure to state in the complaint the amount of the bond, the person to whom it was made, the court wherein the *341judgment was obtained, and that it was duly rendered, and other omissions, make the plaintiff’s success upon a trial very doubtful.

¶5We are by no means certain that the demurrer is not good. Judgment reversed, with costs.

¶6Order reversed, without costs.

¶7Sedgwick, Gh. J., concurs.

¶8Judgment and order reversed.