City Credit Co. v. Donahue — 131 N.Y.S. 580

Majority

p. 580

CITY CREDIT CO. v. DONAHUE et al.

(Supreme Court, Appellate Term.

November 10, 1911.)

Headnote

Pleading (§ 343*)—Judgment on Pleadings. ' ■ ",

It is improper to render judgment for plaintiff on the pleadings, where' material allegations of the complaint are specifically denied in the answer, so as to require plaintiff to prove the truth of such allegations beh fore he can recover.

[Ed. Note.—For other eases, see Pleading, Cfent.- Dig. §§ 1048-1051; Dec. Dig. § 343.*] ... ¡ •

Appeal from Municipal Court, Borough of Manhattan, Ninth District. v

Action by the City Credit Company against Cornelius M. Donahue and another. From a judgment for plaintiff on the pleadings, defendant William H. Metz appeals. Reversed, and new trial granted.' '

Argued before SEABURY, GUY, and COHALAN, JJ.

Mortimer W. Solomon, for appellant.

Gates Hamburger, for respondent.

' At least two material allegations of the plaintiff’s complaint were specifically denied in the answer, thus putting the plaintiff to proof of those allegations upon the trial before he could recover. For that reason alone, judgment upon the pleadings was improperly granted.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.