Spitz v. New York Taxicab Co.

62 Misc. 492, 115 N.Y.S. 247

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1909
• Status: Published

Opinions

MacLean, J.

TJpon November 2, 1908, the return day of a free summons, indorsed: “ Complaint Personal Injuries,” etc., the defendant interposed the written demurrer: “ The complaint does not state facts sufficient to constitute a cause of action.” This, on November thirtieth, the learned trial justice disallowed, with ten dollars costs, because, as he opined, “ Section 145, Sub-div. 2 of the Municipal Court Act allows demurrers only where there is a written complaint.” This was error.

That subdivision of section 145 does indeed provide that a demurrer to a written complaint must be in writing; but this is no more in derogation of the preceding declaration in the same section that pleadings, including demurrers, in the Municipal Court may be oral or written, than is the requirement that a pleading subsequent to a verified pleading must commonly be verified. The court should have deemed the demurrer well founded and allowed the plaintiff, not the defendant, to amend. Subd. 4. The words indorsed upon the summons did not amount to a statement, plain, concise or otherwise, of facts constituting a cause of action. Nor were they helped out by the service, eight days after the joinder of issue, of a bill of particulars which could not create an issue of fact not theretofore tendered the defendant.

What was entered by the plaintiff upon the decision of the learned trial justice and styled “ Interlocutory judgment on demurrer ” has rather the incidents of an order than of a judgment; but, as neither point nor contention is based on that discrepancy, it may be disregarded or overlooked on presumption. Cawley v. Costello, 15 Hun, 303.

Judgment reversed, with costs to the appellant, but with leave to the respondent to plead anew upon payment of costs and disbursements.

Gildersleeve, J., concurs.