Dahm v. O'Connell

Putnam, J.: Where a complaint is demurred to, plaintiff has three ways to test such demurrer. If he moves for judgment under Code of Civil Procedure, section 547, the court which sustains the demurrer should deny this motion by an order. Without some cross-motion or some notice of a trial of the issues of law, judgment should not be entered for defendant. (Ventriniglia v. Eichner, 138 App. Div. 274; Manhattan & Jamaica Railway Co. v. Brady, 170 id. 322; Taishoff v. Elkema, 171 id. 288, 295.) Agreeing with the learned court at Special Term that the complaint was insufficient (96 Misc. Rep. 582), we think the court should have imposed only motion costs. (Keyes v. Lestershire Heights Realty Co., 173 App. Div. 336.) [364] The judgment must, therefore, be reversed, and instead an order should be entered denying plaintiff’s motion, with ten dollars costs. Jenks, P. J., Stapleton, Rich and Blackmar, JJ., concurred. Judgment reversed, and instead an order is directed to be entered denying plaintiff’s motion, with ten dollars costs.