De Traglia v. Natonal Bank of Hobart

Although defendants-respondents’ motion to dismiss the complaint was made upon affidavits, apparently under subdivision 4 of rule 107 of the Rules of Civil Practice, the order appealed from grants the motion on the sole ground that the complaint does not state facts sufficient to constitute a cause of action, necessarily under rule 106. Upon a motion under the latter rule to dismiss the complaint for insufficiency appearing on the face thereof, affidavits may not be used and the court is restricted solely to the allegations of the complaint. In determining the sufficiency of this complaint we…