Johnston v. Bennett

Decided December 15, 1868

The Superior Court of New York City · decided 1868-12-15

Demurrer to complaint. This action was brought by John T. Johnston and A. Boynton, who averred that the defendants procured the late firm of Dunkle, Johnston & Co. to make a sale of goods to them, by false and fraudulent representations, for which the plaintiffs sought to recover damages. Upon the dissolution of the firm of Dunkle, Johnston & Co. the assets and good will thereof were transferred by assignment to the plaintiffs, who thereupon brought this action.

Decided 1868-12-15

Jones, J.

¶1—The principle laid down in Haight v. Hayt (19 N. Y., 464), controls this case ; and under it the demurrer must be overruled. The case of Haight v. Hayt proceeds, so far as the point involved in the case at bar is concerned, upon sections 1 and 2 of article 1 of title 3 of chapter 8 of part 3 of the revised statutes (See opinion of Grover, J., at p. 467, and of Denio, J., at p. 474).

¶2When Zabriskie v. Smith (13 N. Y., 322) was decided, these provisions of the statute do not appear to have been called to the attention of the learned judge (Debio) who delivered the opinion.

¶3Demurrer overruled with costs, with leave to defendants to withdraw demurrer .and answer within twenty days ; if not, then judgment for plaintiffs with costs.