Majority
p. 90HAWES v. HAWES. (Supreme Court, Appellate Term.- December 8, 1910.) Argued before GUY, PLATZEK, and GAVEGAN, JJ.
Headnote
1. Courts ( 189[1] )—Municipal Courts—Procedure—Judgment on Pleadings /—Statutory Provisions.Code Civ. Proc. § 547, providing that, if either party is entitled to judgment on the pleadings, the court may on motion, at any time after issue joined, give judgment accordingly, applies to the Municipal Court of New York City.
[Ed. Note.—For other cases, see Courts, Dee. Dig. § 189.*]
2. Appeal and Error (§ 657*)—Record—Remand for Correction.
Where, on appeal from a judgment on the pleadings, the answer is missing from the return, though stated by the record to be verified and attached to the judgment roll, the record will be returned to the lower court for correction.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2830-2833; Dec. Dig. § 657.*]
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by Elmer Hawes against Isabelle B. Hawes. Judgment for plaintiff on the pleadings and defendant appeals.
Record returned to the lower court for correction.
Robert Lyon, for appellant.
Pheil & Bird, for respondent.
Judgment was rendered upon the pleadings in this case, from which judgment the defendant appeals.
It has been held that the Municipal Court has power under section
p. 91
547 of the Code to make such a disposition of a case. Maune v. Unity Press, 139 App. Div. 740 , 124 N. Y. Supp. 504 . Whether or not this judgment was warranted can only be determined from an examination of the complaint and answer, both of which the record states were verified and attached to the judgment roll. The answer, however, is missing from the return.
The record is therefore returned to the files of the court for correction. All concur.