Maxwell v. County of Monroe , 35 N.Y.S.2d 134 ( 1942 )

Order affirmed, with ten dollars costs and disbursements. Memorandum: It is our view that, in order to allege a good cause of action, plaintiff is not required to negative the facts which would constitute a good defense. It is the duty of defendant to plead facts which will show that it was exercising a governmental function. (Engels v. City of New York, 168 Misc. 753; affd., 256 App. Div. 992; affd., 281 N. Y. 650.) The cases relied upon by defendant, such as Nichitta v. City of New York (223 App. Div. 428; affd., 250 N. Y. 530), are distinguishable. Those cases went to trial, and the defense of governmental function was established. All concur. (The order denies defendant’s motion to dismiss the complaint.) Present — Crosby, P. J., Cunningham, Dowling, Harris and MeCurn, JJ.