Wilson v. Birdsall

Woodward, J.: This action was brought to set aside the redemption from a tax sale by the defendants Birdsall, the plaintiff being the holder of the tax certificate from which redemption was made. The defendants interpose separate demurrers on various grounds, relying principally upon the ground that the complaint failed to state facts sufficient to constitute a cause of action. The plaintiff served a notice of motion for judgment on the pleadings, which motion was denied. The defendants then served notice of trial on the demurrers, and interlocutory judgment was rendered in favor of the defendants, the plaintiff being given permission to amend his complaint upon the payment of costs. The plaintiff has failed to avail himself of this privilege, and appeals from the judgment on the theory that when his motion for judgment on the pleadings was denied the case was finally disposed of and there remained no issue to be tried. There does not appear to be any contention that the complaint states facts sufficient to constitute a cause of action. We are unable to discover any reason for disturbing the judgment in this case. The practice is well established that upon a motion for judgment on the pleadings, with no counter-motion, the court, on determining that the demurrer is well taken, has no power except to deny the motion, leaving the defendant to take such action in reference to his demurrer as would be proper if the motion for judgment had not been made. (Kober v. Lyle, 177 App. Div. 903; Ventriniglia v. Eichner, 138 id. 274; Wayte v. Bowker Chemical Co., 180 id. 568.) The denial of the motion for judgment on the pleadings does not affirmatively dispose of the demurrer, and we are of the opinion that the practice followed by the court is the correct one. The judgment appealed from should be affirmed, with costs, Judgment unanimously affirmed, with costs.