Jennings v. City of Ogdensberg

Appellate Division of the Supreme Court of New York

Jennings v. City of Ogdensberg

249 A.D. 693, 291 N.Y.S. 280, 1936 N.Y. App. Div. LEXIS 5497

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

DecidedNovember 18, 1936

StatusPublished

This text of 249 A.D. 693 (Jennings v. City of Ogdensberg) 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

Jennings v. City of Ogdensberg, 249 A.D. 693, 291 N.Y.S. 280, 1936 N.Y. App. Div. LEXIS 5497 (N.Y. Ct. App. 1936).

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Opinion

Appeal from an order denying a motion to strike out scandalous matter stated in the defense marked III, 2, of the answer, intended to allege contributory negligence. From the affidavits used [694]*694on the motion it is manifest that the particular manner in which the accident happened, or what caused it, is not directly known; that, as to those facts, inferences alone may be drawn from anything appearing in the record. Contributory negligence is not alleged in the common and usual form. Evidence and conjecture are stated in the defense complained of, and that of a character designed to bring opprobrium on the memory of the dead and mortification to the living, to no purpose that serves the law or its practice. The order should be reversed and the motion granted, with leave to the defendant to plead anew. Order reversed on the law and facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to defendant to serve an amended answer within ten days after the service of a copy of the order to be entered hereon, with notice of entry thereof, and upon paying the said costs and disbursements. And it is directed that the original answer or any copy thereof shall not be filed in the county clerk’s office, or otherwise, with the papers in the action. Hill, P. J., Rhodes, McNamee, Crapser and Heffernan, JJ., concur.

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Appeal from an order denying a motion to strike out scandalous matter stated in the defense marked III, 2, of the answer, intended to allege contributory negligence. From the affidavits used [694]*694on the motion it is manifest that the particular manner in which the accident happened, or what caused it, is not directly known; that, as to those facts, inferences alone may be drawn from anything appearing in the record. Contributory negligence is not alleged in the common and usual form. Evidence and conjecture are stated in the defense complained of, and that of a character designed to bring opprobrium on the memory of the dead and mortification to the living, to no purpose that serves the law or its practice. The order should be reversed and the motion granted, with leave to the defendant to plead anew. Order reversed on the law and facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to defendant to serve an amended answer within ten days after the service of a copy of the order to be entered hereon, with notice of entry thereof, and upon paying the said costs and disbursements. And it is directed that the original answer or any copy thereof shall not be filed in the county clerk’s office, or otherwise, with the papers in the action. Hill, P. J., Rhodes, McNamee, Crapser and Heffernan, JJ., concur.

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Bluebook (online)

249 A.D. 693, 291 N.Y.S. 280, 1936 N.Y. App. Div. LEXIS 5497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jennings-v-city-of-ogdensberg-nyappdiv-1936.