SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
December 11, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
PENN CENTRAL COMPANY, APPELLANT
Herlihy, P. J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur in memorandum by the court.
Memorandum by the Court. Appeal by the defendant from an order of the Supreme Court at Special Term, entered in Albany County on July 31, 1969, which denied its motion for dismissal of the complaint for failure to state a cause of action. It should be noted at the outset that a motion to dismiss a complaint for failure to plead sufficient facts to constitute a cause of action does not invoke a responsibility of the court to decide that the plaintiff is or is not entitled to judgment. The question is whether or not the petition or complaint is sufficient so that if all the facts therein are admitted, the court could grant judgment to the plaintiff. It is academic that facts may speak as loudly as rhetoric and the present complaint alleges sufficient facts to support an inference of inadequate maintenance and since one of the orders violated is as to adequate maintenance, a cause of action is properly pleaded. The cause of action based on "on-time performance" is sufficient for the purpose of this motion. The decision of Special Term is correct as to the sufficiency of the complaint, which is the only issue upon this appeal.
Order affirmed, with costs.
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