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Salzman v. Konig

123 N.Y.S. 45 Court N.Y. App. Term Decision date 1910-05-17 English

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p. 45
(67 Misc. Rep. 419.)
SALZMAN v. KONIG.
(Supreme Court, Appellate Term.
May 17, 1910.)

Headnote

Courts (§ 189[1] )—Municipal Courts—Pleading—Motion in Nature of Demurrer.
A motion to dismiss the complaint for insufficiency of facts stated, made at the opening of the trial in the Municipal Court, is in effect a demurrer, and leave must h.e given plaintiff to amend.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.*]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by Joseph Salzman against Max Konig. From a judgment for defendant, plaintiff appeals.
Reversed, and new trial ordered.
Argued before SEABURY, GUY, and BIJUR, JJ.
Mortimer W. Solomon, for appellant.
Eeon S. Kaiser, for respondent.

Defendant moved at the opening of the trial to dismiss the complaint, upon the ground that it failed to state facts sufficient to constitute a cause of action. The court thereupon suspended the trial, and stated that, in the event of a denial of the motion; he would set the cause down for a future day for trial. Subsequently he granted the motion, and dismissed the complaint, with costs. This was error. The motion should have been treated as a demurrer, and leave giyen to the plaintiff to amend his complaint. Rogers v. Fine, 49 Misc. Rep. 633 , 97 N. Y. Supp. 1004 ; Carpenter v. Pirner (Sup.) 102 N. Y. Supp. 461 .

The judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event.