pleadings rule in New York

2011More recently, the Court of Appeals, in Godfrey v Spano ( 13 NY3d 358 [2009] [involving a challenge to recognition of out-of-state same-sex marriages]), found insufficient plaintiffs “conclusory allegations that defendants ‘are expending and will expend State funds and/or resources supplied from New York State tax revenue,’ without claiming specific expenditures that would not otherwise have been incurred” (id. at 374).

2011The Appellate Division found that because the thrust of the pleadings was a challenge to the PSC’s authority to grant the exemption, a nonfiscal activity, “rather than a specific challenge to the expenditures of identifiable State funds,” that the petitioners did not have standing under State Finance Law 123-b (see id. at 881 ).

2003However, even a cursory comparison of the pleadings at bar and those in Incorporated Vil. of Ocean Beach v Maker Water Taxi (supra) reveals that the defendants’ argument is without merit.

1994In accordance with these principles, in Speelman v Pascal ( 10 NY2d 313, 316 , supra), we held that a document stating "I give you from my shares of profits * * * five per cent (5%) in England, and two per cent (2%) of my shares of profits in the United States” constituted a present *89 assignment of the specified shares of future royalties to be received by the assignor (emphasis supplied). 2 Thus, although there are other inconsistent phrases in the instrument executed by Martinez, the words "I give” in the instrument are sufficient to withstand a pleadings challenge as to whether the partie

1983The Appellate Division denied that motion 1 and found respondents guilty of misconduct but, noting that the letters were sent prior to the Appellate Division decision in Greene and in apparent good faith reliance on Bates v State Bar of Ariz. ( 433 US 350 ), determined that no sanction should be imposed ( 88 AD2d 1089 ).

1983The Appellate Division denied that motion 1 and found respondents guilty of misconduct but, noting that the letters were sent prior to the Appellate Division decision in Greene and in apparent good faith reliance on Bates v State Bar of Ariz. ( 433 US 350 ), determined that no sanction should be imposed ( 88 AD2d 1089 ).

1972(Pogor v. Cue Taxi Serv., 43 Misc 2d 487 ; Family Finance Corp. v. Secchio, 65 Misc 2d 344 .) Where appropriate, such amendment may even be granted for the first time on appeal.

1972(Pogor v. Cue Taxi Serv., 43 Misc 2d 487 ; Family Finance Corp. v. Secchio, 65 Misc 2d 344 .) Where appropriate, such amendment may even be granted for the first time on appeal.

1968The general rule is well stated in Corpus Juris Secundum (Vol. 43, Infants, § 105) “It is the right and duty of the court to protect the rights and interests of an infant party, plaintiff or defendant, to a litigation, whether or not the proper relief is asked in the pleadings or the claim or defense is properly pleaded.” Thus, the courts have released an infant from the burden of another’s failure to file a timely notice of claim against a municipality. ‘ ‘ Any other construction ” the Appellate Division has said, “is repugnant to the view that an infant is a ward of the court, and to the pri

1960Special Term dismissed the complaint on the ground that the six-year Statute of Limitations governing contract actions barred plaintiff, and that under the doctrine of Brick v. Cohn-Hall-Marx Co. ( 276 N. Y. 259 ) plaintiff could not escape the application of the statute by dressing the action in the garb of a suit for damages for fraud.

1956If any cause of action in a complaint is sufficient, a motion for judgment on the pleadings under rule 112 must be denied (Heaman v. Rowell Co., 233 App. Div. 335 ).

1954On these motions, it is proper for the court to consider the ‘ ‘ written stipulations entered into as to the facts for the purpose of supplementing the pleadings.” (Lefler v. Clark, 247 App. Div. 402, 404 .) It appears that the subject premises were owned at the time of her death on April 1, 1953, by one Mrs. Elsie N. Arnstein.

1953Therefore, we are not concerned with the question of whether the decision of the courts below can be justified as an exercise of discretion (see Stevenson v. News Syndicate Co., supra, 302 N. Y. 81, 87 ).

1953Therefore, we are not concerned with the question of whether the decision of the courts below can be justified as an exercise of discretion (see Stevenson v. News Syndicate Co., supra, 302 N. Y. 81, 87 ).

1951That the moving affidavit fails to set forth that the plaintiff believes that there is no defense to the action, in accordance with the requirements of rule 113 (Universal Credit Co. v. Uggla, 248 App. Div. 848 ); and 2.

1949Such a motion by a defendant is treated as a motion attacking the sufficiency of the complaint, and any defenses which are contained in the answer are not considered (Lipkind v. Ward, 256 App. Div. 74 ).

1945Co. v. Portalis & Co., 205 App. Div. 144 ) but then the application is made for judgment on the pleadings under rule 112.

1942It is, no doubt, true that payment or indemnity to the payees of checks diverted as these were, made by the wrong-doer, might, under certain circumstances, constitute a basis for equitable relief in an action of this kind, but the proof did not go far enough to warrant it in this case.” (See, also, La Montagne v. Bank of N. Y., 94 App. Div. 219 ; modfd., 183 N. Y. 173 ; S. C., 141 App. Div. 250 ; affd., 205 N. Y. 621 .) The appellant further contends that it was error to admit the evidence of the fraud upon the savings bank as not within the pleadings and that such error led to a judgment on a

1942It is, no doubt, true that payment or indemnity to the payees of checks diverted as these were, made by the wrong-doer, might, under certain circumstances, constitute a basis for equitable relief in an action of this kind, but the proof did not go far enough to warrant it in this case.” (See, also, La Montagne v. Bank of N. Y., 94 App. Div. 219 ; modfd., 183 N. Y. 173 ; S. C., 141 App. Div. 250 ; affd., 205 N. Y. 621 .) The appellant further contends that it was error to admit the evidence of the fraud upon the savings bank as not within the pleadings and that such error led to a judgment on a

1942It is, no doubt, true that payment or indemnity to the payees of checks diverted as these were, made by the wrong-doer, might, under certain circumstances, constitute a basis for equitable relief in an action of this kind, but the proof did not go far enough to warrant it in this case.” (See, also, La Montagne v. Bank of N. Y., 94 App. Div. 219 ; modfd., 183 N. Y. 173 ; S. C., 141 App. Div. 250 ; affd., 205 N. Y. 621 .) The appellant further contends that it was error to admit the evidence of the fraud upon the savings bank as not within the pleadings and that such error led to a judgment on a

1942It is, no doubt, true that payment or indemnity to the payees of checks diverted as these were, made by the wrong-doer, might, under certain circumstances, constitute a basis for equitable relief in an action of this kind, but the proof did not go far enough to warrant it in this case.” (See, also, La Montagne v. Bank of N. Y., 94 App. Div. 219 ; modfd., 183 N. Y. 173 ; S. C., 141 App. Div. 250 ; affd., 205 N. Y. 621 .) The appellant further contends that it was error to admit the evidence of the fraud upon the savings bank as not within the pleadings and that such error led to a judgment on a

1938(Haverhill v. International Railway Co., 217 App. Div. 521 ; affd., 244 N. Y. 582 ; Good Health Dairy Products Corp. v. Emery, 275 id. 14.) Lazansky, P. J., Hagarty, Carswell, Davis and Adel, JJ., concur.

1938(Haverhill v. International Railway Co., 217 App. Div. 521 ; affd., 244 N. Y. 582 ; Good Health Dairy Products Corp. v. Emery, 275 id. 14.) Lazansky, P. J., Hagarty, Carswell, Davis and Adel, JJ., concur.

1937(Elmhurst Fire Co. v. City of New York, 213 N. Y. 87, 91 ; Jex v. Mayor, etc., of New York, 103 id. 536, 540, 541; Matter of Donner-Hanna Coke Corp., supra, p. 341; Horse Aid Society v. Town of New Castle, 241 App. Div. 628 .) In our consideration of the question whether the defect in the assessment alleged in the complaint is jurisdictional, the scope of our inquiry is limited by the fact that the question arises upon a motion for judgment on the pleadings under rule 112 of the Rules of Civil Practice.

1937(Elmhurst Fire Co. v. City of New York, 213 N. Y. 87, 91 ; Jex v. Mayor, etc., of New York, 103 id. 536, 540, 541; Matter of Donner-Hanna Coke Corp., supra, p. 341; Horse Aid Society v. Town of New Castle, 241 App. Div. 628 .) In our consideration of the question whether the defect in the assessment alleged in the complaint is jurisdictional, the scope of our inquiry is limited by the fact that the question arises upon a motion for judgment on the pleadings under rule 112 of the Rules of Civil Practice.

1934On a previous appeal this court affirmed the Special Term which denied plaintiffs’ motion for an order for judgment on the pleadings under rule 112 of the Rules of Civil Practice, and held that there was a question of fact to be determined upon a trial. ( 237 App. Div. 808 .) Upon that appeal we did not construe the provisions of the contract as contended by the respondents.