Schwartz v. Williams

Full title: MICHEL I. SCHWARTZ, Appellant, v . HERBERT E. WILLIAMS and Others…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 1, 1912

153 App. Div. 302 (N.Y. App. Div. 1912)

137 N.Y.S. 1048

Opinion

November 1, 1912.

Max Schleimer, for the appellant.

Louis B. Boudin, for the respondents.

WOODWARD, J.:

Two separate and distinct causes of action are set forth in the complaint, and the defendants have interposed demurrers to the second cause of action. The learned court at Special Term has sustained the demurrer to the second cause of action on the ground that it does not state facts sufficient to constitute a cause of action, and the reasons therefor, which seem to us entirely sufficient, are given in a memorandum handed down by the court.

It is urged, however, upon the authority of Ventriniglia v. Eichner ( 138 App. Div. 274) that the court had no authority to sustain the demurrers, because the defendants made no cross motion for judgment in their favor. It is probably true that upon a motion for judgment on the pleadings the court is not authorized to dispose of a demurrer to the complaint, and this case would come within the rule were it not for the fact that the plaintiff was the moving party. The plaintiff, after the demurrers had been interposed to the second cause of action, gave notice "that the issues of law herein will be brought on for trial on the complaint herein verified February 13, 1912, the Exhibit `A' attached thereto, the demurrers of the defendants Herbert E. Williams and Argus Realty Company interposed herein to the second cause of action set forth in the complaint herein; and I, the undersigned, will move this court at a Special Term, * * * on May 6th, * * * for judgment on the pleadings in favor of the plaintiff and against the defendants * * * on the second cause of action," etc. Under these circumstances the plaintiff cannot be heard to urge upon this appeal that the court was without authority to pass upon the issues of law raised by the demurrers, merely because at the same time the court disposed of the plaintiff's motion for judgment upon the pleadings.

We think the court had the authority to name the conditions on which it would permit the plaintiff to plead over, and that the imposition of twenty dollars in this case was proper.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

JENKS, P.J., THOMAS, CARR and RICH, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.