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Peabody v. West

103 N.Y.S. 942 Court N.Y. App. Div. Decision date 1907-04-19 English

Delivered by GAYNOR, J.

Contents

Majority

p. 942
(119 App. Div. 103)
PEABODY v. WEST.
(Supreme Court, Appellate Division, Second Department.
April 19, 1907.)

Headnote

1. Appeal—Existence op Remedy in Trial Court.
Where plaintiff gave notice of motion for judgment on defendant’s demurrer to the complaint as frivolous, but instead a decision was made overruling the demurrer as "on a trial of the issue of law, with leave to plead over, defendant’s remedy, if dissatisfied with such ruling, was by motion in the trial court to correct the mistake.
2. Same—Record—Verity.
Where the decision and judgment appealed from recited that the issue of law raised on demurrer to the complaint was brought on for trial and tried, counsel on both sides being heard, such record imported absolute verity.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error,
§§ 2850, 2851.]
3. Courts—Pleading—Demurrer—Trial.
An issue of law "raised by a demurrer to the complaint may be tried at a Special Term for motions on consent.
Appeal from Special Term, Kings County.
Action by Margaret A. Peabody against Emma C. West. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals. Affirmed.
Argued before HIRSCHBERG, P. J., and HOOKER, GAYNOR, RICH, and MILLER, JJ.
Joseph P.. Nolan, for appellant.
W. T. Dunmore, for respondent.

The defendant demurred to the complaint, which is, for the foreclosure of a mortgage on real property, on the ground that it did not state facts sufficient. The plaintiff gave notice of motion at the Special Term for motions in Kings county for judgment thereon as frivolous. Instead a decision was made overruling the demurrer as upon a trial of the issue of law, and an interlocutory judgment to that effect was entered, with leave to plead over. If this was a mistake the defe-qdant should have moved before the court below to correct it. But it doejs not seem to be a mistake. The decision and judgment recite

p. 943
that the issue of law was brought on for trial and tried, counsel on both sides being heard, and this imports absolute verity. The issue could be tried at the Special Term for motions on consent, and that is what occurred according to the record.

The judgment should be affirmed.

Interlocutory judgment affirmed, with costs. All concur.