Otis v. Seligman

Larremore, J. — If the plaintiff is entitled to any relief upon the facts stated the demurrer cannot be sustained (Price agt. Brown, 10 Abb. N. C., 67, and cases cited). The averment that the defendants especially assumed the liability to plaintiff’s assignor brings this case clearly within the ruling of Burr agt. Beers (24 N. Y., 178) and fixes their responsibility. They assumed an obligation and must be held liable for its consequences. It is evident from an inspection of the complaint that no issue is presented as to the conversion of the property. It is the product of the sweepings “ left to be refined ” which is the [103] subject of the action. The plaintiff seeks not a recovery in kind, but of the value of the property. But in either case his complaint is not defective in form. He has stated the whole transaction and may be required upon the trial to elect upon which ground he will proceed. That he has asked for more relief than he is entitled to cannot prejudice his claim. In either aspect of the case the question of non-joinder is not available. As joint tort feasors the defendants would be individually liable (Creed agt. Hartman, 29 N. Y., 591). As promissors under the contract of April 13, 1883, they became liable for its performance (Lawrence agt. Fox, 20 N. Y., 268; Arnold agt. Nichols, 61 N. Y., 117). The demurrer should be overruled, with leave to answer on payment of costs.