Daniel v. Manhattan Life Insurance

94 N.Y.S. 49, 106 A.D. 608

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 1905
• Status: Published

Opinions

HIRSCHBERG, P. J.

The action is for damages for the breach of a contract of employment. On the trial at the opening of the case the learned trial justice granted the motion of the defendant’s counsel to dismiss the complaint, made generally upon the ground that it failed to set forth allegations constituting a cause of action. The plaintiff’s counsel thereupon duly excepted, and moved to set aside the direction dismissing the complaint, and for a new trial. This motion was taken under advisement by the learned trial justice, and after due deliberation was granted, and the order to that effect now appealed from was entered.

It appears from the opinion written and delivered by the learned trial justice upon the second motion that he did not dismiss the complaint because he thought it did not state facts sufficient to constitute a cause of action, but solely because he had not read it, and therefore did not know what facts it contained. He said, “I dismissed the case on the trial because the complaint, of more than thirty pages, could not be understood without taking an adjournment to read it.” The ground of dismissal was not one which is recognized as valid in law. The learned trial justice was therefore ultimately right in deciding that he had been previously wrong, and it follows that the order appealed from should be affirmed. The question of the sufficiency of the complaint has not been considered, and is not determined.

I think it just, undér the peculiar circumstances, however, that the affirmance should be without costs.

BARTLETT and MILLER, JJ., concur. HOOKER, J., not voting.