Falk v. Beeckman — 18 N.Y. St. Rep. 1018

Majority

p. 1018

Frank Falk, App’lt, v. Leonard Beeckman, Resp’t.

(City Court of New York, General Term,

Filed November 23, 1888.)

Headnote

Dismissal of complaint—Motion for—Requisites of.

A motion to dismiss a complaint, to be effectual, must point out specifically the defects in the plaintiff’s proofs, so that he may supply the deficiencies. A general objection to the sufficiency of the proof is not sufficient.

Appeal from judgment entered on dismissal of complaint.

Lexow & Leo, for app’lt; J. C. Shaw, for resp’t.

The contract provides that the work to be done was to be paid for every two weeks as the work progressed. The action ivas to recover $2,000, the contract price. Upon the proofs, the plaintiff may not have been entitled to recover this sum, but it does not follow that where the contract price was payable in installments every two weeks as the work progressed, that the plaintiff was entitled to recover nothing. The trial judge dismissed the-complaint, but the printed case fails to show the ground upon which the dismissal was granted. The defects in the plaintiff’s proofs ought to have been specifically pointed out, that the plaintiff might have supplied the deficiencies. Devoe v. Brandt, 58 Barb., 493 ; Newton v. Harris, 6 N.Y., 345 ; Binsse v. Wood, 37 id., 526.

p. 1019

Upon the record, as it stands, the judgment appealed from must be reversed and a new trial ordered, with costs to abide the event.

McAdaii, Oh. J., Ehrlich and MoGown, JJ., concur.