Rogers v. Fine

49 Misc. 633 | N.Y. App. Term. | 1906

Per Curiam.

Although the Municipal Court Act does not, in terms, provide for a dismissal of a written complaint, upon the ground that it does not state facts sufficient to constitute a cause of action, unless a written demurrer has been interposed, we think that the power to so dismiss must be deemed to be inherent in the court (Morris v. Hunken, 40 App. Div. 129), because it would be idle to permit the plaintiff to prove a state of facts which, when proven, could result only in a non-suit. When such a motion is granted, however, the plaintiff should be allowed to amend so as, if possible, to cure the defect. The allowance of such an amendment is made obligatory by subdivision 4, section 145 of the Municipal Court Act, when a written demurrer is sustained, and, by analogy, should follow upon the granting of a motion to dismiss for insufficiency, which is in effect an oral demurrer. The justice erred in refusing plaintiff’s application for leave to amend, and the judgment must, for that reason, be reversed.

Present: Scott, Giegerioh and Gheenbaum, JJ.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.