Schweiger v. Empire Rollerdrome of Brooklyn, Inc.

Upon that theory the plaintiff made out a cause of action. At the close of the plaintiff’s ease, a motion made by the defendant to dismiss the complaint for failure to make out a cause of action was granted, apparently upon the ground that the evidence received over the defendant’s objection could not be considered because it was not within the issues raised by the pleadings. This was an erroneous conclusion that requires a reversal. (Kelley Lumber Co. v. Otselie Valley Railroad Co., 136 App. Div. 146, and cases therein cited.) While the complaint is not as definite and certain as it ought to…