Fosmire v. National Surety Co.

The Special Term properly denied the plaintiff’s motion for judgment on the pleadings, but, in the absence of a counter-motion by the defendant, it erred in going farther and dismissing the complaint.

The remittitur should, therefore, be amended so as to provide that the order of the Appellate Division be reversed and that of the Special Term modified by striking out the direction for judgment of dismissal, and as modified affirmed, without costs to either party, and the question certified answered in the negative.

Except as aforesaid, the plaintiff’s motions for an amendment of the remittitur, for leave to serve an amended complaint, and for a re-argument, are denied.

All concur.