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King v. Bierschenk

52 N.Y.S. 498 Court N.Y. App. Div. Decision date 1898-06-21 English

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p. 498
KING v. BIERSCHENK et al.
(Supreme Court, Appellate Division, Second Department.
June 21, 1898.)

Headnote

Pleading—Complaint.
Where a complaint, though defective, states a cause of action, it cannot be dismissed, but defendant’s remedy is to move to make it more definite.
Appeal from Kings county court.
Action by Thomas B. King against Charlotte M. Bierschenk and Charles M. Bierschenk. From a judgment dismissing the complaint, plaintiff appeals.
Beversed.
Argued before GOODBICH, P. J., and CULLEN, BABTLETT,. HATCH, and WOODWABD, JJ.
Henry Cooper, for appellant.
W. H. Ingersoll, for respondents.

We are of opinion that the allegation in the complaint should be considered one of fact, and not a conclusion of law. Therefore, though faulty, the complaint was not subject to demurrer or dismissal on the trial as not stating a cause of action, but the defendants’ remedy was to move to make it more definite and certain. Judgment reversed and new trial granted; costs to abide the event.