Goldstein v. Aiello

254 A.D. 729, 4 N.Y.S.2d 968

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1938
• Status: Published

Opinion

Per Curiam.

Facts sufficient to constitute a cause of action are pleaded. However, whether or not the court on the equity side may entertain jurisdiction is a matter which the trial justice will have to determine after the proofs are submitted. Since plaintiff has seen fit to apply to equity for relief, the justice presiding may deem it proper, in the event that plaintiff is entitled to a decree, to award to him the amount of money Ms assignor paid on account of the contract.

It must be remembered that we are passing only upon the complaint. For aught we know defendant may have a substantial defense.

The order should be affirmed, without costs, with leave to the defendant to answer within ten days after date of service of order, with notice of entry thereof.

Present — Martin, P. J., O’Malley, Glennon, Untermyer and Dore, JJ.

Order unanimously affirmed, without costs, with leave to the defendant to answer within ten days after service of order.