McGillicuddy v. Kings County Elevated Railway Co.

The complaint in this case sets forth a cause of action against the defendant. There were no affidavits before the court tending to show that the action was not brought in good faith, and no denial of the allegations of the complaint. On the papers used on the motion, we are satisfied that the plaintiff had a good cause of action, for the reason that no papers were read in opposition to the statements set forth in the complaint, and the complaint must, for the purposes of the motion, be taken as true.

The complaint was referred to in the petition and notice of motion, and we, therefore, are of opinion that the petition did state the nature of the action.

The order should be reversed and motion granted, with ten dollars costs and disbursements.

Present: Clement, Ch. J., and Van Wyok, J.

Order reversed and motion granted, with ten dollars costs and disbursements.