Opinion
June 20, 1960
In an action to recover damages for personal injuries. the defendant Andrel appeals from an order of the Supreme Court, Queens County, dated September 3, 1959, denying his motion, pursuant to rule 112 of the Rules of Civil Practice, for judgment on the pleadings dismissing the complaint against him on the ground that, as to him, it fails to state a cause of action. Order affirmed, with $10 costs and disbursements. We do not agree with the conclusion reached at the Special Term that the affidavit of an employee of the attorney for the plaintiff and an attached excerpt from the examination before trial of a defendant, could properly be considered for the purpose of showing the existence of an issue of fact as to the ownership of an automobile involved in the accident which resulted in the infant plaintiff's injuries. The only question presented was whether the complaint sufficiently pleaded a cause of action against the defendant Andrel. It was asserted that the complaint did not because the allegation that he owned the automobile stated a conclusion of law and was not an allegation of fact. In our opinion, the allegation of ownership is sufficient (cf. Trembath v. Berner, 240 N.Y. 618), and the complaint adequately states a cause of action against the defendant Andrel. Nolan, P.J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.