National Park Bank v. Billings — 203 N.Y. 556

Majority

p. 556

The National Park Bank of New York, Respondent, v. Henry Billings et al., Appellants.

Headnote

National Park Bank v. Billings, 144 App. Div. 536 , affirmed.

(Argued October 4, 1911;

decided October 24, 1911.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 19, 1911, which modified and affirmed as modified an order of Special Term granting a motion for judgment upon the pleadings in a judgment creditor’s action to secure the sale of an alleged interest of the defendant Billings in his father’s estate to satisfy a judgment.

The following questions were certified:

“First. May the court upon motion, after issue joined in an action by demurrer to the complaint, give judgment upon the pleadings?

“Second. Does the complaint state facts sufficient to constitute a cause of action? ”

J. Culbert Palmer for appellants.

C. H. Payne and Louis F. Doyle for respondent.

Order affirmed, with costs, on opinion of Miller, J., below, and questions certified answered in the affirmative.

Concur: Cullen, Oh. J., Vann, Werner, Willard Bartlett, Hiscock and Chase, JJ.; Haight, J., concurs with Miller, J., below, so far as the merits are concerned, but dissents as to the practice upon opinion of McLaughlin, J., below.