Schnell v. Metropolitan Street Railway Co. — 60 N.Y.S. 215

Majority

p. 215

SCHNELL v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Division, Second Department.

October 10, 1899.)

Headnote

•Pleading—Motion to Strike Out.

Allegations in a complaint intended to show the duty of defendant to maintain the tracks of a railroad in repair, and under which evidence to establish such duty may be. introduced, will not be stricken out on motion, and are not to be regarded in that respect as conclusions of law, but as averments of facts.

Appeal from special term.

Action by Charles Bchnell against the Metropolitan Street-Rail-way Company. Appeal by defendant from an order denying a motion to strike out certain paragraphs of the complaint on the ground that they were redundant, and that they were averments of conclusions of law.

Affirmed.

Argued before GOODRICH, P. J., and CULLER, BARTLETT, HATCH, and WOODWARD, JJ.

Charles F. Brown (Henry A. Robinson, on the brief), for appellant.

Herbert C. Smyth, for respondent

While the complaint in this case is subject to just criticism by reason of its unnecessary averments, yet it clearly appears from all the allegations that the plaintiff charges the defendant with the operation of the railroad and the duty of maintaining the tracks in repair, and, under these averments, he may introduce any evidence showing the obligation either as owner or lessee. In this respect the averments are not to be treated as conclusions

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of law, but as averments of fact, at least sufficient to resist the motion to strike out.

The order' should be affirmed, with $10 costs and disbursements.