Kinsella v. Goff

Order modified in accordance with the memorandum and as modified affirmed, with $10 costs and disbursements to the respondent. Memorandum: We agree with the decision of the Special Term denying defendants’ motion to dismiss the amended complaint under rule 106 of the Rules of Civil Practice. We do not, however, agree with the statement made by the court in its memorandum that the sufficiency of the amended complaint had been previously sustained by another justice. Ordinarily a court will not inquire into the sufficiency of a pleading in the absence of a motion addressed to the pleading (Ponticello V. Prudential Ins. Co. of America, 281 App. Div. 549). The parties agree that no motion to test the sufficiency of the amended complaint had ever been made prior to the instant motion under rule 106. That part of the order of the Special Term which denied the motion under rule 103 of the Rules of Civil Practice to strike out paragraphs of the amended complaint set forth in the moving papers, should be modified by striking paragraph Tenth therefrom, upon the ground that the allegations therein are wholly irrelevant. All concur. (Appeal from an order denying defendants’ motion to dismiss plaintiff’s amended complaint in a stockholder’s action.) Present — McCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.