Loftus v. Columbia Ribbon & Carbon Manufacturing Co.

275 A.D.2d 839

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 2, 1949
• Status: Published

Opinion

The allegation that the plaintiff was arraigned and tried before a city judge is not to be construed as meaning exclusively that the plaintiff was held for trial after a magistrate had examined into the facts (in which case it would appear, as matter of law, that probable cause for the prosecution was alleged). (Hopkinson v. Lehigh Valley R. R. Co., 249 N. Y. 296, 300.) The allegations of paragraphs sixth and seventh of the third amended complaint are sufficient to permit the introduction of evidence on the issue of fact as to whether or not the plaintiff was held for trial after an examination into the facts by the city judge. The words ordered to be struck from the fifth paragraph of the third amended complaint (supra) are irrelevant to the cause of action and prejudicial. The words ordered to be struck from the eighth paragraph (supra) state mere conclusions, unaccompanied by the allegation of facts sufficient to justify their use. Nolan, P. J., Carswell, Johnston, Adel and Wenzel, JJ., concur. [See post, p. 840.]