13 N.Y.S. 837 | N.Y. Sup. Ct. | 1890
Mr. Justice Barrett, who had the question here presented before him in another form, is of the opinion, in which I concur, that this motion should be denied, without prejudice to the defendant’s right to raise the question by answer in the nature of a supplement. The question now presented is whether leave to sue was ever necessary. This is a serious question, and should be left to the trial, where a ruling can be had upon which a review upon the merits may be obtained. The' cases where the courts have dismissed suits on motion were such as depended upon judicial action, like the taking of bonds from the files, and delivering them to the party for prosecution. There, although the complaint may state a good cause of action, the court will stay proceedings, or even dismiss, if informed that the party has proceeded without its authority. Here, however, the plaintiff has actually averred “leave given” in his complaint, and issue has been joined on that by some of the other defendants. Now, plaintiffs had such leave when the suit was commenced, but such leave has been taken away from them since. That involves a supplemental pleading. It is impossible to settle all the questions which thus arise on mere motion, especially as plaintiffs now claim that their allegation of “leave given” was unnecessary, and that they have a right to proceed without it; citing authorities to that effect in the second department. Mead v. Spink, 1 N. Y. Supp. 390; Schultz v. Mead, 8 N. Y. Supp. 663. The court, upon motion, in view of the serious questions presented, should not in this summary form dismiss the complaint. The motion should therefore be denied, without costs, thus leaving the parties to their pleadings and to the trial. Ordered accordingly.
