D'Auria v. Niemiec

This is a motion to dismiss the complaint in an action for assault and battery on the ground it does not state facts sufficient to constitute a cause of action.

The defendant contends that the only statement in the complaint by which any factual situation whatever is presented is the allegation designed ‘ ‘ Third ’ ’. This paragraph reads as follows: “ That on or about July 1, 1956, on Amherst Street in the City of Buffalo, New York, the defendant assaulted, battered and beat plaintiff without any provocation or just cause. ’ ’

The defendant further contends that the complaint is defective in…