
    Morris Rogers, Appellant, v. Abraham Fine et al., Respondents.
    Municipal Courts — Procedure — Pleading — Dismissal of complaint for failure to state cause of action.
    Pleading — Motions relating to pleadings — Motion to dismiss — For failure of complaint to state cause of action.
    "Appear by the plaintiff from a judgment dismissing the complaint rendered in the Municipal Court of the city of New York, Eleventh District, borough of Manhattan.
    Gustavus A Rogers, for appellant.
    Respondents filing no brief.
   Per Curiam.

Although the Municipal Court Act does not, in terms, provide for a dismissal of a written complaint, upon the ground that it does not state facts sufficient to constitute a cause of action, unless a written demurrer has been interposed, we think that the power to so dismiss must be deemed to be inherent in the court (Morris v. Hunken, 40 App. Div. 129), because it would be idle to permit the plaintiff to prove a state of facts which, when proven, could result only in a non-suit. When such a motion is granted, however, the plaintiff should be allowed to amend so as, if possible, to cure the defect. The allowance of such an amendment is made obligatory by subdivision 4, section 145 of the Municipal Court Act, when a written demurrer is sustained, and, by analogy, should follow upon the granting of a motion to dismiss for insufficiency, which is in effect an oral demurrer. The justice erred in refusing plaintiff’s application for leave to amend, and the judgment must, for that reason, be reversed.

Present: Scott, Giegerioh and Gheenbaum, JJ.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.  