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Peabody v. West

119 A.D. 103 Court Second Department, Decision date 1907-04-19 English

Delivered by Gaynor, J. :

Contents

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p. 103
Margaret A. Peabody, Respondent, v. Emma C. West, Appellant.
Second Department,
April 19, 1907.

Headnote

Practice—judgment overruling demurrer—entry thereof on return of motion to dismiss demurrer as frivolous.
When a party gives notice, of motion for judgment on a demurrer as frivolous a decision overruling the demurrer as upon a trial of the issue of law may be made by consent.
When the decision and judgment recite that-the issue of law was brought on for trial and tried, counsel on both sides being heard, such recitation imports absolute verity. .' .
Appeal by the defendant, Emma.C. West, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the- 25th day of August, 1906, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the complaint. ...
Joseph P. Nolan {Edward K. Jones with him on the brief], for •the appellant.
W. T. Dunrnore, for the respondent.

The defendant demurred to the complaint, which is for the foreclosure of a mortgage on real property, on the ground that it did. not state facts sufficient. The plaintiff gave notice of motion at the Special Term for motions in Kings County for judgment thereon as frivolous. Instead a decision was made overruling the demurrer ' as upon a trial of the issue of law, and an interlocutory judgment to that effect was entered, with leave to plead over. If this was a mistake the defendant should have moved before the court below to correct it. But it does not seem to be a mistake. The decision and ■ judgment recite that the issue of law was brought on for trial and tried, counsel.on both sides' being heard, and this imports absolute . verity. The issue could be tried at the Special Term for motions on consent, and that is what occurred according to the record.

Thé judgment should be affirmed.

■ Hirsohberg, P. J., Hooker, Eioh and Miller, JJ., concurred. Interlocutory judgment affirmed, with costs. •"