Schweiger v. Empire Rollerdrome of Brooklyn, Inc.

265 A.D. 867, 37 N.Y.S.2d 753, 1942 N.Y. App. Div. LEXIS 6242

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1942
• Status: Published

Opinion

Upon that theory the plaintiff made out a cause of action. At the close of the plaintiff’s ease, a motion made by the defendant to dismiss the complaint for failure to make out a cause of action was granted, apparently upon the ground that the evidence received over the defendant’s objection could not be considered because it was not within the issues raised by the pleadings. This was an erroneous conclusion that requires a reversal. (Kelley Lumber Co. v. Otselie Valley Railroad Co., 136 App. Div. 146, and cases therein cited.) While the complaint is not as definite and certain as it ought to be, it sufficiently alleges that the plaintiff’s injuries resulted through a fall caused by the negligence and carelessness of the defendant’s employees. Judgment reversed on the law and a new trial granted, with costs to abide the event. Hagarty, Johnston, Adel, Taylor and Close, JJ., concur.