Mahar v. Harrington Park Villa Sites

123 N.Y.S. 927

Opinion

BIJUR, J.

Upon the return, the plaintiff pleaded orally: “Money,. ’ had and received, affecting the title of Harrington Park.” The defendant immediately filed a written demurrer. The demurrer was sustained, and the court directed that the plaintiff “file a bill of particulars setting forth his cause of action.” It does not appear from the record that any bill was filed, nor that the cause of action was ever adequately stated.

At the opening of the trial the defendant moved to dismiss, which motion was denied. Under the circumstances, defendant having made- due and timely objection in every possible way to plaintiff’s insufficient pleading, the refusal to dismiss was error. See Samuelson v. Mayer (decided in June, 1910, Appellate Division, First Department), 123 N. Y. Supp. 418.

Judgment reversed and new trial ordered, with costs to appellant to .abide the event. All concur.