Goodman v. Alexander. cover against them, is well-settled law. That, however, is not the question involved here, which is whether the complaint must allege either the non-existence of any person standing in such relation to the infant as to bear the obligation to supply it with necessaries, or that, if existing, such person was unable to do so. As the question is one of pleading, we observe in the first place that at common law in an action to recover against an infant for necessaries the declaration was required to contain only counts as in an action for debt for board and lodg ing or goods furnished. If the defendant by his plea set up infancy as a defense, the plaintiff in his replication alleged that the articles furnished were necessaries, and the trial proceeded to judgment in accordance with the truth of the matter (Chappie v. Cooper, 13 M. & W., 252 ; Burghart v. Hall, 4 M. & W., 727; Brooker v. Scott, 11 M. & W., 67; Ryder v. Wombell, L. R., 4 Ex. 31; Maddox v. Miller, 1 M. & S., 738; Bacon's Abr., vol. 5, p. 120, and cases cited; Beeler v. Young, 1 Bibb. Ky., 519; Glover v. Ott, 1 McCord, 572). The practice of the common law governed in this jurisdiction down to the time of the adoption of the Code, and until that time, therefore, the facts alleged in this complaint would have been well pleaded, if stated in a declaration. We are next to inquire, therefore, whether that section of the Code which provides that the complaint (which takes the place of the declaration at common law) shall contain a plain and concise statement of facts constituting the cause of action (sec. 481) requires a different or more complete statement than the declaration formerly required. The general understanding has been that the Code was not intended to exact a more formal complaint than was required at common law, but instead to abolish the forms, technicalities and fictions of that practice. In Moak's Van Santvoord's pleadings it is said (at p. 28) that "the simple, logical mode of statement Goodman v. Alexander. used by the pleader in the old common-law declarations and pleas without regard to form will be in most cases sufficient; and so the rule has been understood and held to be under the Code." Again (at p. 203) it is said: "The conclusion arrived at is that the old common-law count in debt, and not indebitatus assumpsit, is the proper form of complaint under the Code; and it seems to me that this conclusion must be admitted to be correct and logical in all cases where it is not designed to prove on the trial an express promise, and where, under the limitations above given, the common count may be used as expressing precisely the fact, by the proof of which it is intended to sustain the demand." And again (at p. 204) the author sums up the result of his examination of the authorities on the subject subsequent to the adoption of the Code as follows: "In all cases where the money counts heretofore might have been used, the plaintiff may still set forth his cause of action in this form." But we are not without authority in this court upon this precise question of pleading, for in Zabriskie v. Smith (13 N. Y., 322) the court (at p. 330) says: "Under our present system of pleading, I conceive that the complaint should contain the substance of the declaration under the former system." This language was quoted with approval in Conaughty v. Nichols (42 N. Y., 86). and I deem it quite safe to say that neither decision nor expression to the contrary can be found in the reports. of this court. The conclusion reached by us, that the complaint stated a cause of action, does not seem to require other support in authority; but it might not be out of place to cite in this connection some of the many cases in which actions against infants, that resulted in awards of judgments to the plaintiffs, have been tried upon complaints which did not contain allegations anticipating either the defense of infancy, or that there were persons in existence standing in loco parentis whose duty it was Goodman v. Alexander. to supply the infant with necessaries, but where in the main in the general form of the declaration of the common law in actions for debt (Lynch v. Johnson, 109 Mich., 640; Locky v. Smith, 41 N. H., 346; Guthrie v. Murphy, 4 Watts, Pa., 80; Tupper v. Cadwell, 12 Met. Mass, 559; Trainer v. Trumbull, 141 Mass., 527; Angell v. McLellan, 16 Mass., 28; Thrall v. Wright, 38 Vt., 494; Wailing v. Toll, 9 Johns., 141; Atchison v. Bruff, 50 Barb., 381). The judgment should be reversed and a new trial granted; costs to abide the event. VANN, J. (dissenting). The question presented by this appeal is whether, in an action against an infant for necessaries, when the plaintiff alleges in his complaint the fact of infancy, it is necessary for him to also allege the special facts which must be proved in order to make the infant liable. An infant is not liable generally on its contracts, but only upon those made for it by the law, which, under peculiar circumstances, imputes a duty that the infant cannót of itself assume. The infant is not ordinarily liable even for necessaries, which are the usual and suitable means of support. It is not the primary duty of an infant to support itself, as that duty rests upon the father or upon some other person standing in loco parentis, and it is only when there is no such person who can or will discharge the duty that the infant becomes liable (Wailing v. Toll, 9 Johns., 141; 2 Kent., 255; 16 Amer. & Eng. Encyclo. Law, 2d ed. 275). This liability is an exception to the general rule, founded upon necessity, for the infant must live, and, if there is no one else to support it, the law makes it liable even to a stranger who furnishes it with suitable means of support. Every infant is furnished with necessaries by some one, but it becomes liable therefor only under the special circumstances named. Goodman v. Alexander. Hence, these special circumstances which create the liability must be proved or there can be no recovery. They cannot be presumed, for the presumption, in the absence of evidence, is that they do not exist. As they are of the substance of the cause of action they cannot be proved unless they are alleged (Hatch v Leonard, 165 N. Y.,). They are essential facts, of which the Code requires "a plain and concise statement" (Code Civ. Pro., sec. 481). It is not enough to simply show that necessaries were furnished, for it must also appear that there was no one whose duty it was to provide them, or, if there was such a person, that he failed to discharge the duty. As these facts must be shown by evidence, they must be set forth in the complaint, which measures the evidence that may be lawfully given at the trial. These observations are made in the light of the fact that it appears from the complaint that the defendant is an infant. If that fact had not been expressly set forth the defense of infancy, when alleged in the answer, would "be deemed controverted *** by traverse or avoidance as the case required" (Code Civ. Pro., sec. 522). As the plaintiff alleged that fact she was bound to allege facts in avoidance thereof, which would not otherwise have been necessary. Having assumed to allege a fact constituting a defense, she was obliged to allege facts to avoid that defense. When she alleged that the person furnished with necessaries was an infant, she should also have alleged the facts showing why the infant was liable, as otherwise the legal conclusion was against liability. The necessary allegation would not have been burdensome, for a single sentence would have sufficed. No authority in this State is cited to support the theory of the plaintiff that she can allege the infancy of the defendant, without alleging facts showing liability, notwithstanding such infancy. Infants, as wards of the Brokaw v. Duffy. court, are entitled to its special protection, and a fundamental rule of pleading should not be subverted in order to make a child, seven years old, liable for its own support, when, for aught that appears, it had a father able and willing to support it. For these reasons I dissent from the judgment about to be pronounced by the court. GRAY, BARTLETT, MARTIN, CULLEN, and WERNER, JJ., concur with PARKER, Ch. J., for reversal; VANN, J., dissents. Judgment reversed, &c. ISAAC N. BROKAW, RESPONDENT, v. ELLEN DUFFY, APPELLANT. COURT OF APPEALS-JANUARY, 1901. $81027, 1338. Executory contract-Marketable title to real estate. What questions reviewable by the Court of Appeals. A purchaser of real estate under an executory contract is entitled to a marketable title, free from doubtful questions of fact or law. In an action brought by the plaintiff to recover bad moneys paid on an executory contract, on the ground that the title was unmarketable, it appeared that he had discovered that a lis pendens was once filed against the property in proceedings to contest the defendant's title because of her grantor's insanity at the time he conveyed to her, which proceedings were subsequently dismissed on grounds of irregularities not affecting their merits and the lis pendens canceled; that the evidence in those proceedings was on file and disclosed that the charge of insanity was probably well founded. He was also credibly informed that another proceeding was to be commenced to contest the title on the same ground and that, if he took the property, he would have to defend it. No attempt was made by the defendant to explain these facts or to show that the title was unimpaired by them. Held that the plaintiff was justified in reject |