Dunn v. Chernewski

The opinion of the court was delivered by Kalisch, J. Notice was given by the attorneys of defendant to the complainants’ attorney of a motion to strike out “the complaint filed in the above-entitled cause on the ground that the same does not constitute a cause of action.” *28 The notice of the motion is radically defective. It does not specify any particular cause of objection, as required by rules 42 and 43 of the new Practice act. Supp. Comp. Stat. 1911, 1915, p. 1214. Buie 42 provides: “Every motion addressed to a pleading must present every cause of objection then existing.” Eule 43 provides: “Every notice of any motion addressed to a pleading shall specify the grounds thereof,” The practice in this respect is the same as declared by section 191 of the Practice act of 1903 (Pamph. L., p. 587), which provides: “The notice of a motion to strike out any pleading or any part thereof shall contain a particular statement of the defects in or objections to such pleading, on which the part giving the notice intends to rely, and matters not specified in the notice shall not be considered on the hearing.” Now, in the present case, the notice given leaves it uncertain whether the motion is founded upon the ground that the facts set out in the complaint do not constitute a cause of action, for the reason that the alleged facts do not comprise all the essential elements required by the statute in an action based upon it for the violation thereof, or upon the ground that no cause of action is vested in the complainants in their respective individual capacity, by the statute. The motion to strike out is denied, with costs.