Wohlers v. Martorella

279 A.D. 629, 107 N.Y.S.2d 834

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1951
• Status: Published

Opinions

Per Curiam.

The default suffered on the pretrial calendar was inadvertent and the dismissal for that reason should be vacated. The complaint, giving to its averments the most favorable construction, states a cause of action. That the damages claimed may not have resulted from the wrong charged is no ground for invalidating the complaint; it must be held good as a pleading if it may be construed as charging a legal wrong for which the pleader is entitled to recover in any form and to any extent. The motion for judgment on the pleadings and for summary judgment dismissing the complaint should be denied. Triable issues are raised by the affidavits. The order and judgment below should be accordingly reversed, with costs to the appellants. Settle order restoring the cause to its position on the calendar.