Metropolitan El. Ry. Co. v. Johnston
New York Supreme Court
Appeal from special term, New York county. Action by the Metropolitan Elevated Railway Company and the Manhattan Railway Company against William H. Johnston. From an order dismissing the complaint on the pleadings, and from a judgment entered thereon, plaintiffs appeal. Affirmed.
1ConcurrenceFollett, J.
I concur in the opinion of the presiding justice,
except that part which discusses the rule governing the necessity of pleading the defense of the existence of an -adequate remedy at law. That question does not seem to be involved in this case. In case the relief sought may be granted on a motion or by an action, it is within the discretion of the court to refuse to settle the rights of the litigants on a motion, and compel the moving party to seek his relief in an action. Hill v. Hermans, 59 N. Y. 396; Montrait v. Hutchins, 49 How. Pr. 105. This is frequently done when the right of the moving…
2Cases cited4 opinions
- Brown v. Lake Superior Iron Co.Supreme Court of the United States · 1890
- Hill v. . HermansNew York Court of Appeals · 1874
- Montrait v. HutchinsNew York Supreme Court · 1875
- Newell v. Manhattan Railway Co.New York Supreme Court · 1894