Lienan v. Lincoln.

plaint states that the defendants, " on the 28th of February, 1852, were justly indebted to Zachrisson in the sum of $7946.36, with interest thereon, for moneys, notes, and effects, before that time had and received, to and for the use of the said Zachrisson, the particulars of which will appear on reference to the annexed account, which is true, and forms part of this complaint." That being so indebted, they became liable to pay it to Zachrisson, or his assigns, when thereunto requested, and being so liable, they did, as plaintiff is informed and believes, promise to pay it to him,

It avers a sale and assignment of the debt, to the plaintiff, in trust, and that he has a right, as owner, to the debt or demand, and prays judgment for the amount of it. The account annexed to the complaint, is in the form of debtor and creditor. As a specimen of its items, one is given, reading thus:

"September 11, 1851.-To notes received from Mercantile Insurance Company, for the loss of steamer Union'

$10,164.24."

The defendants demur to the complaint, and specify, as a ground of demurrer, that the complaint does not state facts sufficient to constitute a cause of action.

F. H. Clarke, for defendant.

E. H. Owen, for plaintiff.

BOSWORTH, J.-The complaint is clearly bad. It does not contain 66 a plain and concise statement of the facts constituting a cause of action." The Code requires a complaint to contain them (§ 142). The rules by which the sufficiency of a pleading is to be determined, are those prescribed by the Code (§ 140). A stranger to this transaction can learn nothing of its precise nature or character, from the complaint.

Because a defendant receives notes and effects to a plaintiff's use, he does not, as a matter of course, become liable to pay him the amount of them. Whether he has incurred such a liability, may depend upon a variety of facts; upon the pur

Lienan v. Lincoln.

pose or object for which he received them; whether he undertook to convert the effects into money, and to collect the notes; whether he has made himself liable for not collecting or converting; whether he has disposed of them on his own account, or some of many other facts which readily occur to the mind.

Whether a defendant has received money or property to the use of another, is usually a question of law, depending upon facts which are to be litigated, and found by the court or a jury. Each of the material facts, essential to raise and uphold such a conclusion of law, is a fact which should be stated in the complaint; and the whole of such facts constitute the cause of action. If enough are not stated, to raise and uphold such a legal conclusion, enough are not stated to constitute a cause of action, and the complaint is demurrable for that cause.

What the facts are, on which the plaintiff will insist, that, in judgment of law, certain moneys, notes, and effects were received by the defendants, to and for the use of Zachrisson, the complaint does not state. Nor does it state the facts, which are relied upon, as sufficient to create a legal liability of the defendants, to pay to him, in money, the amount of any notes they may have received to his use. It does not allege that they are due, have been paid, or misappropriated, or that the defendant has failed or refused to apply them to the purpose for which they were received, or to deliver them to the plaintiff. If the defendant is liable to pay the amount of any notes he may have received for the plaintiff, it is by reason of facts, beyond that of so receiving them. If such facts exist, they are not stated. The facts which, in judgment of law, create such an indebtedness or liability, should be stated in the complaint.

In this complaint, no facts are stated. It simply affirms a legal conclusion, without a statement of the facts on which it is founded. The account annexed to the complaint, obscures, instead of making the real grounds of the claim apparent.

The defendant is entitled to judgment on the demurrer (Getty v. Hudson Railroad Company, 8 How. P. R. 177).

But the plaintiff may amend his complaint in twenty days, on payment of the costs of the demurrer.

Approved, on consultation.

Lawrenee v. Wright.

LAWRENCE V. WRIGHT.

In an action, under the Code, to recover the possession of real estate, the facts set forth in the complaint must show that the plaintiff has a legal title to the premises in question; the mere averment that he has such a title is insufficient. Facts, constituting a cause of action, or a defence, in the sense of the Code, are physical facts, capable of being established by oral or documentary proof, not propositions, which are true in law.

Special Term, October, 1853.

THIS was an action to recover the possession of certain lots of land, in the city of New York.

The complaint averred, that the lots which it described, were, on or about the 15th of January, 1853, conveyed by Francis Price to the plaintiff, by a warranty deed. That by virtue of this conveyance, the plaintiff was seized of the premises, had a lawful title thereto, and was entitled to the possession thereof, and that the defendant was in the possession, and unlawfully withheld the same from the plaintiff, and upon these grounds demanded judgment.

The defendant demurred, and assigned the following causes of demurrer.

1. That the complaint did not show any right, title, or interest in Price, or any right in him to convey.

2. That it did not allege, that either Price or the plaintiff was ever in possession of the property claimed.

3. That it did not state facts sufficient to constitute a cause of action.

Stillwell & Swan, for defendant.

J. A. Wagstaff, for plaintiff.

DUER, J.-It is very clear that this demurrer must be allowed. All the facts which the complaint avers, may be true, and yet the plaintiff not have the shadow of a right to the D.-I.

43

Lawrence v. Wright.

judgment which he demands. The only facts set forth in the complaint are, that on a certain day, one Price, by a warranty deed, conveyed the lots described to the plaintiff, that the defendant is in the possession of the lots so conveyed, and withholds their possession from the plaintiff. It is, however, quite certain that if, upon the trial of the action, these facts, and these alone, were proved on the part of the plaintiff, no evidence on the part of the defendant would be required. The complaint would be at once dismissed. The facts, therefore, which it avers, do not show even a prima facie right to

recover.

It is true that the complaint avers that, by virtue of the conveyance from Price, the plaintiff became seized by a lawful title of the premises in question, and is entitled to the possession, which the defendant unlawfully withholds; but these allegations are not of facts, which, as constituting the cause of action, the Code requires to be set forth, but are merely conclusions of law, which, as they do not follow from the facts previously averred, must be wholly disregarded.

The defendant, in an action to recover the possession of property distrained, damage feasant, may aver in his answer, under § 166 of the Code, that he was lawfully possessed of the real property upon which the distress was taken, without setting forth his title; and it is perhaps to be regretted that a like compendious form of pleading has not been authorized in every action, in which an issue upon the title to real property is properly raised; but, as the Code is framed, the exception proves and establishes the general rule. It proves that, in every other action than that to which § 166 relates, a plaintiff or defendant, who relies upon his title to real property, must set it forth in his complaint or answer; that is, must set forth the facts which, if true, prove that the title, which he claims, exists.

I incline strongly to believe that the errors, which too frequently occur in pleadings under the Code, must be ascribed to a mistaken interpretation of the words, "facts constituting a cause of action," or "a defence;" nor is the source of the mistake difficult to be explained. In writing, and in conversation, the term "fact" is frequently, and perhaps not improperly, ap

Schenck v. Naylor.

plied to an abstract proposition, a proposition true in morals or in law, but of which the truth depends, not upon testimony, but upon authority or reasoning, and in this sense of the term it is obvious, that every just conclusion of law is a fact. That such a conclusion, however, although just in itself, is not a fact within the meaning of the Code, is evident upon slight reflection, and a single example will be sufficient to prove.

There is no apparent impropriety in saying, "It is a fact, that Peter owes John a sum of money," but who will assert that a complaint would be good that should aver that the defendant owes the plaintiff a certain sum for which the plaintiff demands judgment, without alleging a single fact from which the debt could arise? Yet if the words of the Code, "facts constituting a cause of action," refer to conclusions of law, and not to the facts from which, if admitted or proved, the conclusions are to be drawn, even such a complaint would be free from objection. It is in reality no worse than that now before me, nor than many that almost daily pass under our observation.

All these errors in pleading will be avoided if it is constantly remembered that the facts which the Code requires to be set forth are not true propositions, but physical facts, capable, as such, of being established by evidence, oral or documentary, and from which, when so established, the right to maintain the action, or the validity of a defence, is a necessary conclusion of law-a conclusion which the court will draw, and which it is quite unnecessary that the pleader should state.

Approved upon consultation.

Demurrer allowed, with the usual liberty to the plaintiff to amend the complaint upon payment of costs.

SCHENCK and another v. NAYLOR.

In an action to recover damages for the breach of a covenant, if the complaint does not show, either by express words, or by a necessary implication, that the covenant is broken by the defendant, it is bad upon demurrer.