Costanzo v. Mackler

Appellate Division of the Supreme Court of New York

Costanzo v. Mackler

15 A.D.2d 790, 224 N.Y.S.2d 701, 1962 N.Y. App. Div. LEXIS 11582

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 13, 1962

StatusPublished

This text of 15 A.D.2d 790 (Costanzo v. Mackler) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Costanzo v. Mackler, 15 A.D.2d 790, 224 N.Y.S.2d 701, 1962 N.Y. App. Div. LEXIS 11582 (N.Y. Ct. App. 1962).

Pincite

Opinion

Although this motion to dismiss the defense as legally insufficient was made pursuant to rule 109, it was supported by defendant’s voluminous testimony given during his examination before trial, and it was decided on the basis of such testimony. Rule 109, however, permits a defense consisting of new matter to be stricken out as insufficient in law only “ where * * * the * * * defects appear on the face thereof ”; on a motion under this rule only the pleading may be examined to determine the sufficiency of the defense. It was improper, therefore, to grant the motion and to strike out the defense on the basis of the extraneous matter, to wit: defendant’s testimony adduced at his examination before trial. Beldoek, P. J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.

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Although this motion to dismiss the defense as legally insufficient was made pursuant to rule 109, it was supported by defendant’s voluminous testimony given during his examination before trial, and it was decided on the basis of such testimony. Rule 109, however, permits a defense consisting of new matter to be stricken out as insufficient in law only “ where * * * the * * * defects appear on the face thereof ”; on a motion under this rule only the pleading may be examined to determine the sufficiency of the defense. It was improper, therefore, to grant the motion and to strike out the defense on the basis of the extraneous matter, to wit: defendant’s testimony adduced at his examination before trial. Beldoek, P. J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.

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Bluebook (online)

15 A.D.2d 790, 224 N.Y.S.2d 701, 1962 N.Y. App. Div. LEXIS 11582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/costanzo-v-mackler-nyappdiv-1962.