(8.) IN CASES OF PLEADING A JUDGMENT, PERFORMANCE OF CONDITION PRECEDENT, AND PRIVATE STATUTE, SECTIONS 161, 162, 163 OF THE CODE. (No. 45.) On a judgment by leave of the court. SUPREME COURT—OTSEGO COUNTY. Leonard Caryl John Russell. The plaintiff abovenamed complains of the said defendant, and alleges: That by leave of this court, first had and obtained by order of this court, made at Special Term, held at, &c., and on, &c., which order was made on due notice to the defendant, the said plaintiff brings this action.1 That the said plaintiff, on the 28th day of June, in the year 1842, in the Court of Common Pleas of Otsego county, before the judges thereof, by the consideration and judgment of the said court, duly given or made, recovered against said defendant the sum of $3,508.12, which, in and by the said court, was then and there adjudged to the said plaintiff for his damages, which he had sustained as well by reason of the non-performance of 1 By section 71 of the Code no action can be brought upon a judgment rendered in any court, except a Court of Justice of the Peace between the same parties, without leave of the court, for good cause shown, on notice to the adverse party. The complaint, therefore, should show by proper averments the leave to sue on notice, and I have altered the foregoing precedent accordingly, by inserting the allegations in italics, as above. certain promises and undertakings, then lately made by the said defendant to the said plaintiff, as for his costs and charges by him about that suit expended, whereof the said defendant was convicted, as by the record and proceedings thereof, remaining in the clerk's office of Otsego county, more fully appears; which said judgment still remains in full force and effect, not reversed, satisfied or otherwise vacated, and the said plaintiff hath not obtained satisfaction of or upon the said judgment so recovered as aforesaid, by execution or otherwise, but that the defendant still owes the same to the said plaintiff, and hath not paid the same or any part thereof. Wherefore the said plaintiff demands judgment in this action against the said defendant for the sum of $3,508.12, and interest on the same from the 28th day of June, 1842, and the costs and disbursements of this suit.1 C. FIELD, Plaintiff's Attorney. (No. 46. ) On a justice's judgment rendered more than five years before Title of the Cause. suit.2 The plaintiff complains of the defendant: That on the day of, being five years and upwards before the commencement of this suit, in and by 1 As to reviving a judgment by action, in place of the writ of scire facias, see 12 How., 537, 11 How., 209. 2 No action can be brought on a justice's judgment, in the same county, within five years after its rendition, except in case of his death, resignation, incapacity to act, &c., &c., as provided by section 71 of the Code. the consideration and judgment of A. B. D., who was then one of the justices of the peace of the town of which judgment was duly given or made 1 by said justice, the said plaintiff recovered of the said defendant the sum of, &c., [proceed as in the foregoing form to the end. If the suit should be brought before the expiration of the five years, the complaint should show that the justice is dead, or has resigned, or removed from the county, or incapable, as provided by section 71 of the Code]. (No. 47.) On policy of marine insurance; preformance of conditions precedent pleaded generally, pursuant to section 162, Code. SUPREME COURT-ERIE COUNTY. Henry E. Mussey The Astor Mutual Insurance Company. The plaintiff, Henry E. Mussey, complains of The Astor Mutual Insurance Company, which the plaintiff alleges is a corporation created by and under the laws of the State of New-York, defendants. 1 The allegation must be substantially, if not literally, in the very language of the Code, that the "judgment was duly given or made," otherwise the facts showing the jurisdiction of the justice must be pleaded. An allegation that, on the day of -, judgment was entered in said action by said justice, &c., has been held to be insufficient. (Hunt and others v. Dutcher, 13 How., 539.) See another precedent, in which a justice's judgment is pleaded, ante, No. 20, p. 114. Also, a precedent in which a surrogate's decree is pleaded, No. 24, Part III., p. 406. That heretofore, on the 4th day of September, in the year 1852, the defendants executed and delivered to the plaintiff a policy of insurance in the words and figures following, that is to say: [Or a copy of which is annexed to and forms part of this complaint, and then set forth copy verbatim.]1 That the said plaintiff, at the time of the execution and delivery of said policy, was the owner of the said vessel described and named in the said policy of insurance, and continued to be such owner of said vessel until and at the time of damage and loss thereof, hereinafter mentioned. And the said plaintiff further saith, that after the making and delivery of the said policy of insurance, and on or about the 1st day of November, in the year 1852, aforesaid, and while the said vessel was prosecuting the freighting business aforesaid, mentioned in the said policy of insurance, the said vessel was, by the perils or damages of the sea, or navigation upon Lake Michigan, by the violence of the winds and waves, bilged, broken and destroyed, and the said vessel did then and there become, and was wholly lost to him, the said plaintiff; of all which said premises the said defendant afterwards, to wit, on the day and year last aforesaid, had notice. And the said plaintiff further saith, that after the making and delivery of the said policy of insurance, in manner and form aforesaid, he, the said plaintiff, duly performed all the conditions in the said policy on his part to be per formed.2 1 It is not necessary to set out the policy in full, but for greater caution it may be done if the pleader prefer. See, post, No. 52, for a precedent on a policy of insurance against fire, and No. 53, on a policy to insure a vessel, in which the material parts of the contract only are alleged. 2 This is precisely in the phraseology used by the Code, section 162. It should in all cases, where this general form of pleading is adopted, Wherefore the plaintiff demands judgment against the said defendants, to the said sum of $5,500, with the interest thereon from the said 1st day of November, in the year 1852. WILLIAM H. GREENE, Plaintiff's Attorney. (No. 48.) For a penalty provided by statute. Title of the Cause. The plaintiff, A. B., an inhabitant of the town of Athens, in Greene county, complains of the defendant, and alleges, on his information and belief, that on the day of the defendant set a stationary fish net in the creek commonly called the Murderer's creek, in the town of Athens, in the county of Greene, that is to say, in a portion of said creek running through said town, and contrary to the provisions of an act of the Legislature of the State of New-York, entitled "An act to prevent the destruction of fish in Murderer's creek, in the town of Athens," passed March 13th, A. D. 1838. That by reason thereof the defendant is indebted to the be strictly followed. See an example of a slight variance from this form of expression, in No. 30, ante, p. 421. The court might, no doubt, hold that the precise language of the statute should be used in this general mode of pleading the performance of conditions precedent, for the same reasons given in the case of pleading a judgment of a court of limited jurisdiction. (Hunt v. Dutcher, 13 How., 539; see, also, for this form of pleading condition precedent, No. 21, p. 401, and No. 23, p. 409.) |