Turner v. Craney 254 A.D. 919

Appeal from an order dismissing the complaint as it failed to state facts sufficient to constitute a cause of action. The complaint after stating that the plaintiff was lawfully and rightfully proceeding on a tractor on the highway in a careful and prudent manner alleges that the motor vehicle owned and operated by the defendant was so negligently, recklessly and carelessly maintained, managed and operated that it violently collided with the tractor on which the plaintiff was proceeding, resulting in injuries to the plaintiff. In this complaint no intimation of what it is proposed to prove the defendant did or omitted to do is stated and the complaint is, therefore, insufficient. Negligence under such an allegation may consist of any one of a wide variety of acts. Sufficient facts are not pleaded so that the defendant can know with what he is charged and be prepared to meet the allegations upon the trial from the complaint itself. A difference is indicated in cases where the complaint is not challenged until the trial when a more liberal ruling is sometimes adhered to. (Smith v. Levison, 222 App. Div. 310; Wright v. United Traction Company, 131 id. 356; Peterson v. Eighmie, 175 id. 113; Newell v. Woodward, 241 id. 786; Beatty v. McCutcheon, 200 id. 869.) Order affirmed, with ten dollars costs and disbursements, with leave to plaintiff to plead anew within twenty days after entry and service of copy of order to be entered hereon. Rhodes, Crapser and Bliss, JJ., concur; Hill, P. J., and Heffernan, J., dissent.