Van Dyke v. Gardner — 21 Misc. 542

Majority

p. 542

Albert Van Dyke, Respondent, v. John M. Gardner, Appellant.

(City Court of New York, General Term,

October, 1897.)

Headnote

Answer — When one, alleging that the plaintiff is not the real party iti interest, is insufficient.

An answer which merely alleges “ that plaintiff was- not the real or proper party in interest ” is insufficient to raise that issue, as the facts which support the contention must be alleged by the defendant.

Appeal from a judgment in favor of plaintiff.

Henry M. Heymann, for appellant.

George Bell, for respondent.

Under , the issues framed by the pleadings defendant could not show that the plaintiff was not the real party in- interest, as he failed to allege the facts necessary to' raise sutih an issue. i

The mere legal conclusion “that plaintiff was not the real or proper party in interest ” pleaded by him was not sufficient. Ho error being discovered, judgment affirmed, with costs. .

Present: Fitzsimons, Conlan and Schuchman, JJ.

Judgment affirmed, with costs.