Appellate Division of the Supreme Court of the State of New York December 31, 1934 (Jarecky v. O'Neil)

lead-opinion

Per Curiam.

The complaint does not state facts sufficient to constitute a cause of action, and for that reason the motion to dismiss the affirmative defense contained in the answer was properly denied. The complaint itself, however, cannot be dismissed because there was no counter-motion seeking that relief. (Bernard v. Chase Nat. Bank, 233 App. Div. 384.