Majority
p. 167Irving W. Childs, Respondent, v. Eversley Childs, Individually and as Sole Trustee under the Last Will and Testament of William H. H. Childs, Deceased, Appellant. (No. 1.) First Department, April 7, 1911.
Headnote
Practice —judgment on the pleadings — when motion premature.A motion for judgment on the pleadings under section 547 of the Code of Civil Procedure can only be made when the cause is at issue, and hence such motion is premature where the defendant has neither answered nor demurred to an amended complaint.
Appeal by the defendant, Eversley. Childs, individually and as trustee, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the officé of the clerk of the county of New York on the 20th day of January, . 1911, denying the defendant’s motion for judgment on the pleadings.
William W. Niles, for the appellant.
Edwin S. Leavitt, for the respondent.
Defendant’s motion for judgment on the pleadings was properly denied, because it was premature. An amended complaint had been served, but it had not been answered or demurred to.
p. 168
Consequently the cause was not at issue, and there were, properly speaking, no pleadings upon which an order for judgment could be based. Section 547 of the Code of Civil Procedure clearly contemplates tljat a. motion under it shall be made only when the cause is at issue, and it would have been a simple to have served an answer or demurred bis motion. The order appealed from ten dollars costs and disbursements. matter for defendant and then have made must be affirmed, with
Ingraham,- P. J., McLaughlin, Miller and Dowling, JJ.,. concurred. j
Order affirmed, with] ten dollars costs and disbursements.