Meinhardt v. Excelsior Brewing Co.

81 N.Y.S. 1042

Opinion

JENKS, J.

The oral pleadings are complaint for money had and received, and answer of general denial. There was no amendment of the answer. At the close of the case the defendant moved for' a dismissal of the complaint on the ground that it appeared that the ownership of the fund was equally in the plaintiff and a third party. The court gave judgment dismissing the complaint on the merits. The defendant could have pleaded that defect in abatement. Laws 1902, p. 1496, c. 580. As it did not, I think that it waived the point. Section 20, Municipal Court Act (section 449, Code Civ. Proc.); Carr v. Security Insurance Company, 109 N. Y. 504, 511, 17 N. E. 369. I think that the exceptions to the rulings that admitted testimony to establish the fact of part ownership in a third person were well taken. Smith v. Hall, 67 N. Y. 48; Spooner v. D., L & W. R. Co., 115 N. Y. 22, 21 N. E. 696; Zapp v. Miller, 109 N. Y. 51, 15 N. E. 889; Stamp v. Franklin, 144 N. Y. 607, 39 N. E. 634.

The judgment should be reversed, and a new trial ordered. All concur.