Opinion
July, 1917.
Judgment and order reversed and new trial granted, with costs to appellant to abide event. Held, that upon a motion to dismiss a complaint and for judgment thereon upon the ground that there is not stated therein facts constituting a cause of action, the allegations thereof must be assumed to be true ( De Wolf v. Ford, 193 N.Y. 397); that the complaint in this case stated a cause of action in equity, independent of title 1, article 5, sections 1638 to 1646, inclusive, of the Code of Civil Procedure, and that it was error to dismiss it ( Livingston v. Moore, 15 App. Div. 15-26; Swarthout v. Ranier, 143 N.Y. 499; St. Stephens Church v. Church of Transfiguration, 201 id. 1); that in any event, without taking proof of the defenses alleged, it was error to grant the defendants affirmative relief. All concurred.