Hawes v. Hawes — 128 N.Y.S. 50

Majority

p. 50

HAWES v. HAWES.

(Supreme Court, Appellate Term.

March 13, 1911.)

Headnote

Pleading (§ 350^[1] )—Motions—Judgment on Pleadings.

In deciding a motion for judgment on the pleadings, where defendant has pleaded res judicata, the court cannot go outside of the pleadings in order to hold such defense insufficient.

[Ed. Note.—For other cases, see Pleading, Dec. Dig. § 350.^[1] ]

p. 51

Appeal from Municipal Court, Borough of Manhattan, Fifth District. V

Action by Elmer Hawes against Isabella Hawes. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

See, also, 126 N. Y. Supp. 90 .

Argued before SEABURY, PAGE, and BIJUR, JJ.

Robert Lyon, for appellant.

Pheil & Bird, for respondent.

This is an appeal from a judgment which was granted upon the pleadings. An examination of the answer shows that the defendant pleaded res ad judicata as a defense. The defense as pleaded raised an issue which the court could determine only upon a trial. The respondent, to sustain the judgment, goes outside of the pleadings and urges considerations-which tend to show that the judgment pleaded is not a bar to this action. These considerations do not appear from an examination of the pleadings, and therefore could not properly be taken into account in deciding the motion for judgment upon the pleadings.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.