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Van Dyke v. Gardner

47 N.Y.S. 710 Court N.Y. City Ct. Decision date 1897-10-26 English

Contents

Majority

p. 710
(21 Misc. Rep. 542.)
VAN DYKE v. GARDNER.
(City Court of New York, General Term.
October 26, 1897.)

Headnote

Pleading—Issue.
An allegation in a defendant’s pleading that plaintiff “is not the real party in interest” constitutes a mere legal conclusion, and raises no issue.
Appeal from trial term.
Action by Albert Van Dyke against John M. Gardner. Judgment for plaintiff. Defendant appeals. Affirmed.
Argued before FITZSIMOYS, COYLAY, and SCHUCHMAY, JJ.
Henry M. Heyman, for appellant.
George Beel, 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 such an issue. 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.