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McDonnell v. Winthrop Realty Co.

117 N.Y.S. 92 Court N.Y. App. Div. Decision date 1909-05-28 English

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p. 92
McDonnell v. WINTHROP REALTY Co. et al.
(Supreme Court, Appellate Division, First Department.
May 28, 1909.)

Headnote

Pleading (§ 350[1] )—Motion fob Judgment.
Where defendant set up no defense in its answer, filed no affidavit of merits, and failed to show that it in fact had any defense to the action, an order for judgment on the pleadings should not have been conditioned on failure to serve an amended answer within a specified time.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1070; Dec. Dig. § 350.[1] ]
Appeal from Special Term, New York County.
Action by Robert E. McDonnell against the Winthrop Realty Company and others. From an order directing judgment on the pleadings against defendant company unless it serve an amended answer within 10 days, plaintiff appeals.
Modified, and, as modified, affirmed.
p. 93
Argued before INGRAHAM, McLAUGHLIN, HOUGHTON, CLARKE, and SCOTT, JJ.
J. H. Rogan, for appellant.
P. M. Abrahams, for respondent.

The defendant respondent has set up no defense in its answer, files no affidavit of merits, and does not show that in fact it has any defense to the action. Under these circumstances, we think the order appealed from should be modified, by striking out the provision allowing the service of the amended answer, and, as so modified, affirmed, with $10 costs and disbursements to the appellant.