Lee et al. v. Terbell et al.

Lee et al. v. Terbell et al. (Circuit Court, S. D. New York. October 22, 1887.) Judgment—Pleading Jurisdictional Pacts—Code Civil Proc. N. Y. § 532. Under Code Civil Proc. N. Y. § 532, providing that in pleading a judgment it shall not be necessary to allege the jurisdictional facts, but that it may be stated that it was “duly given or made,” an allegation of the appointment of commissioners by a judgment “duly made by and entered in” a certain court is sufficient. At Law. Demurrer to the complaint. Richard H. Lee, Henry H. Eaton, C. E. Stuart, and R. T. Barton, plaintiffs, sued Henry S. Terbell, William J. Best, et ah, alleging that they were appointed special commissioners by a judgment duly made and entered in the circuit court of Richmond, Virginia, and that the defendants made certain bonds to them. Defendant Terbell demurred, alleging that the judgment under which the commissioners were appointed Avas not, sufficiently set out. P. Eckerson, for plaintiffs. John Winslow, for defendants. [MAJORITY — Wallace, J.] Wallace, J. Upon the argument of the demurrer to the complaint, although no doubt Aras entertained that the second ground of demurrer Aras not tenable, it Avas doubted Arliether the first ground was not well taken; and I AA'as inclined to the opinion that the aArermeuts were not sufiieient to show that the plaintiffs had legal capacity to sue, because of the failure to allege the facts shoAving that the circuit court of the city of Richmond liad jurisdiction of the subject-matter of the action, anti of the person of the defendants therein. Section 532, Code Civil Proc., dispenses Avith the necessity of alleging these jurisdictional facts; and the complaint conforms to the requirements of that section by the averments that the judgment AA'hich authorized the plaintiffs to maintain suit in their official character was “duly made.” The demurrer is therefore overruled, Avith costs.