23 N.Y.S. 854 | New York Court of Common Pleas | 1893
In an action for rent the defendants interposed an affirmative defense and several counterclaims. On plaintiff’s motion, at the opening of the case, the defense and counterclaims were dismissed for insufficiency in substance. The trial proceeded upon two other issues raised by the pleadings, and resulted in a verdict for the plaintiff on one issue, and for the défendants on the other. Judgment was entered for the plaintiff. Upon the appeal the only question is whether1 the court erred in the dismissal of the defense and counterclaims. Elaborate and interesting arguments are submitted to us by the respective counsel in attack and support of the rejected pleadings; but, as the judgment must be reversed upon a point of practice, we have no occasion to consider them on the merits.
In Smith v. Countryman, 30 N. Y. 655, the court of appeals held that a plaintiff cannot move, at the trial, to strike out a defense on the ground that the facts stated do not constitute an answer to the action. The reason of the ruling is abundantly vindicated in concurring opinion by Davies and Mullin, JJ., and its validity repeatedly recognized in subsequent adjudications. Schuyler v. Smith, 51 N. Y. 309, 317; Meyer v. Fiegel, 7 Rob. (N. Y.) 122, 128; Butler v. Livermore, 52 Barb. 570, 578; Lathrop v. Godfrey, 3 Hun, 739, 742. On the other hand, upon a diligent examination of the reports, we fail to discover that the authority has ever been challenged.
The complaint may be dismissed at the trial because bad in substance; but this, by virtue of express provision of the Code, (sections 498, 499.) Tooker v. Armoux, 76 N. Y. 397, 400. Counsel for the respondent intimates that the practice pursued by him is habitual with the profession. It may be so, and still we are bound