Brown v. Rohrer — 199 A.D. 913

Majority

p. 913

First Department,

November, 1921.

Burnetta B. Brown, Appellant, v. Melanie Rohrer, Respondent.

Headnote

Pleadings — motion by plaintiff for judgment on pleadings — order denying motion should not state that demurrer to complaint was sustained where defendant makes no counter-motion.

Appeal from order of the Supreme Court, dated the 27th day of July, 1921, and entered in the New York county clerk’s office, denying plaintiff’s motion for judgment on the pleadings.

The motion having been made by plaintiff for judgment on the pleadings, and no counter-motion having been made by the defendant, it becomes necessary to modify the order appealed from by striking out so much thereof as provides, “ and the demurrer sustained; ” and as so modified the order is affirmed, with ten doHars costs and disbursements to the respondent, with leave to the plaintiff to file an amended complaint within twenty days from service of the order to be entered hereon with notice of entry thereof, upon payment of said costs and ten doHars costs of motion at Special Term. Present — Clarke, P. J., DowHng, Page, MerreH and Greenbaum, JJ. Order modified as indicated in opinion, and as so modified affirmed, with ten doHars costs and disbursements to respondent.