Citation Numbers： 67 Misc. 419, 123 N.Y.S. 45
Judges： Bijub, Guy, Seabuby
Filed Date： 5/15/1910
Status： Precedential
Modified Date： 11/12/2024
Defendant moved at the opening of the trial to dismiss the complaint, upon the ground that it failed to state facts sufficient to constitute a cause of action. The court thereupon suspended the trial and stated that, in the event of a denial of the motion, he would set the cause down for a future day for trial. Subsequently he granted the motion and dismissed the complaint, with costs. This was error. The motion should have been treated as a demurrer and leave given to the plaintiff to amend his com
.The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event. _
Judgment reversed and new trial ordered.