Opinion
May 6, 1942.
Present — Crosby, P.J., Cunningham, Dowling, Harris and McCurn, JJ.
Order affirmed, with ten dollars costs and disbursements. Memorandum: It is our view that, in order to allege a good cause of action, plaintiff is not required to negative the facts which would constitute a good defense. It is the duty of defendant to plead facts which will show that it was exercising a governmental function. ( Engels v. City of New York, 168 Misc. 753; affd., 256 App. Div. 992; affd., 281 N.Y. 650.) The cases relied upon by defendant, such as Nichitta v. City of New York ( 223 App. Div. 428; affd., 250 N.Y. 530), are distinguishable. Those cases went to trial, and the defense of governmental function was established. All concur. (The order denies defendant's motion to dismiss the complaint.)