Opinion
May Term, 1903.
Adolph Feldblum, for the appellant.
Victor E. Whitlock, for the respondent.
The oral pleadings are complaint for money had and received, and answer of general denial. There was no amendment of the answer. At the close of the case the defendant moved for a dismissal of the complaint on the ground that it appeared that the ownership of the fund was equally in the plaintiff and a third party. The court gave judgment dismissing the complaint on the merits. The defendant could have pleaded that defect in abatement. As it did not I think that it waived the point. (Municipal Court Act [Laws of 1902, chap. 580], § 20; Code Civ. Proc. § 449; Carr v. Security Insurance Company, 109 N.Y. 504, 511.) I think that the exceptions to the rulings that admitted testimony to establish the fact of part ownership in a third person were well taken. ( Smith v. Hall, 67 N.Y. 48; Spooner v. D., L. W.R.R. Co., 115 id. 22; Davis v. President, etc., D. H. Canal Co., 109 id 47, 51; Stamp v. Franklin, 144 id. 607.)
The judgment should be reversed and a new trial ordered.
GOODRICH, P.J., BARTLETT, WOODWARD and HIRSCHBERG, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered costs to abide the event.