Bryant v. Shaw

Rich, J.: The action is in partition. The defendant Shaw interposed a demurrer to the complaint and then moved for judgment on the pleadings. The motion was granted, but upon appeal to this court the order was reversed with leave to withdraw the demurrer and answer. (190 App. Div. 578.) Instead of availing herself of this permission, respondent has obtained an order requiring the plaintiffs to enter judgment upon the order of reversal in this court. In effect respondent has obtained an order directing that a judgment be entered denying a judgment. I know of no rule requiring a party to enter judgment upon an order of the Appellate Division denying a motion for judgment on the pleadings. In Taishoff v. Elkema (171 App. Div. 288), Mr. Justice Page, after discussing the rules of practice governing motions for judgment on the pleadings and demurrers, said: “‘Where the matter is brought before the court on notice of motion, either under sections 976 or 547, no written decision or interlocutory judgment need be filed or entered, but an order should be entered.’ ” In Dahm v. O’Connell (179 App. Div. 363), Mr. Justice Putnam, writing for this court, said: “ 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.” [459] The demurrer in the case at bar-was not brought on for trial under section 977, followed by a decision under section 1021 of the Code of Civil Procedure, and it follows that the order must be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Jenks, P. J., Putnam, Blackmar and Kelly, JJ., concur, Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.