Opinion
March 9, 1945.
Appeal from Supreme Court, New York County, O'BRIEN, J.
Osmond K. Fraenkel for appellants.
William S. Lebwohl of counsel ( Ignatius M. Wilkinson, Corporation Counsel, attorney), for respondent.
In two consolidated actions, plaintiffs appeal from an order and a judgment dismissing the complaints on defendant's motion for judgment on the pleadings. Equitable relief is asked; defendant in its answers does not allege that plaintiffs have an adequate remedy at law; defendant did not, as in Terner v. Glickstein Terner, Inc. ( 283 N.Y. 299), move to dismiss for insufficiency before answer. Accordingly, as the complaints sufficiently state causes of action at law ( Nelson v. Board of Higher Education of City of N.Y., 263 App. Div. 144, affd. 288 N.Y. 649) and answers have been served before any motion was made, the court should not have dismissed the complaint on a motion for judgment on the pleadings. ( Port v. Holzinger, 212 App. Div. 124, 125; Hirsh v. Central Hanover Bank Trust Co., 251 App. Div. 24; Peck v. Philipson, 265 App. Div. 109; Kraemer v. World Wide Trading Co., Inc., 195 App. Div. 305, 306; Perrin v. Smith, 135 App. Div. 127, 131.)
The order and the judgment appealed from should be reversed, with costs to the appellants, and the motion denied.
MARTIN, P.J., GLENNON, DORE, COHN and CALLAHAN, JJ., concur.
Order and judgment unanimously reversed, with costs, and the motion denied.