Majority
p. 616GOTTLIEB v. PECK & MACK CO. (Supreme Court, Appellate Term. November 30, 1909.) Argued before GILDERSLEEVE, P. J., and SEABURY and _ LEHMAN, JJ.
Headnote
Courts (§ 189*)—Municipal Courts—Judgment on Pleadings.The New York Municipal Court has no power to grant judgment on the pleadings, where the complaint states a cause of action.
[Ed. Note.—For other cases, see Courts, Cent. Dig. § 409; Dec. Dig. § 189.*]
*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Oscar Gottlieb against the Péck & Mack Company. From a judgment dismissing the complaint, plaintiff appeals.
Reversed, and new trial ordered.
I. L. Broadwin, for appellant.
Franklin Bien, for respondent.
It seems to us that the complaint states a good cause of action. The proof of plaintiff’s cáse depends upon the question whether the record of the earlier trial will show that the jury made an allowance of $217- upon the offer of the defendant to return goods of that value. Where the complaint states a cause of action, the Mu
p. 617
nicipal Court has no power to grant judgment on the pleadings and to deprive the plaintiff of his right to a trial.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event.