p. 363James H. Dahm, Appellant, v. John S. O’Connell, Respondent.Headnote
Practice — demurrer — motion for judgment on pleadings — order not judgment should be entered — costs.Where, after a demurrer to a complaint, the plaintiff moves for judgment under section 547 of the Code of Civil Procedure, the court on sustaining the demurrer should deny the plaintiff’s motion by order; without some cross-motion or notice of a trial of the issues of law judgment should not be entered for the defendant. Hence, the court should impose only motion costs.
Appeal by the plaintiff, James H. Dahm, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bongs on the 27th day of September, 1916, upon the decision of the court sustaining defendant’s demurrer to a complaint for slander and dismissing the complaint.
An appeal is also taken, as stated in the notice of appeal, from the decision pursuant to which the judgment was entered.
Daniel J. McFarland, for the appellant.
Alfred J. Talley [Joseph A. McNamara with him on the brief], for the respondent.
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. (Ventri niglia 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 .)
p. 364The 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.