Boston Woven Hose & Rubber Co. v. Jackson

If the defendants had put in issue the first, third and sixth paragraphs of the complaint, there would be considerable force in their contention that there was a failure of proof which called for a dismissal of the case. It is true that as to these allegations they have denied any knowledge or information sufficient to form a belief, but while such a plea is good in a court of record, it is unauthorized in an action brought in the Municipal Court. Lambert v. Hoffman, 20 Misc. Rep. 331. The allegations in question must, therefore, stand as admitted. Under these circumstances there was enough evidence to support the conclusion of the justice in favor of the plaintiff. The action was brought for negligence and not for conversion. It was, therefore, unnecessary to prove a demand. The fact that the interest of the plaintiff has been transferred to another after suit brought is no defense to the further prosecution of the action in the name of the assignor. Platt v. McMurray, 63 How. Pr. 149; Lawson v. Town of Woodstock, 37 Hun, 352; Code Civ. Pro., § 756. The judgment should be affirmed.

Present: Beekman, P. J., Gildersleeve and Giegerioh, JJ.

Judgment affirmed, with costs.