Majority
p. 781CHILDS v. CHILDS. (Supreme Court, Appellate Division, First Department. April 7, 1911.)
Headnote
Pleading (§ 850[1] )—Motion fob Judgment on the Pleadings—Motion Befóse Issue.Under Code Civ. Proc. § 547, which provides that, if either party is entitled to judgment on the pleadings, the court may, upon motion at any time after issue joined, give judgment accordingly, a motion by defendant for judgment on the pleadings, made after an amended complaint had been served, to which he bad neither answered nor demurred, is prematurely made.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1070-1077; Dec. Dig. § 350.[1] ]
Appeal from Special Term, New York County.
Action.by Irving W. Childs agaihst Eversley Childs, individually .and as sole trustee under the last will and testament of William H.
H. Childs, deceased. From an order denying a motion for judgment ■ on the pleadings, defendant appeals.
Order affirmed.
See, also, 128 N. Y. Supp. 782 .
p. 782Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, MILLER, and DOWLING, JJ.
W. W. Niles, for appellant.
Edwin R. Leavitt, for respondent.
Defendant’s motion for judgment on the pleadings was properly denied, because it was premature. An amended complaint had been served, but it had not been answered or demurred to. Consequently the. cause was not at issue, and there were, properly speaking, no pleadings upon which an order for judgment could be based. Section 547, Code of Civil Procedure, clearly contemplates that a motion under it shall be made only when the cause is at issue, and it would have been a simple matter for defendant to have served an answer, or demurred, and then have made his motion.
The order appealed from must be affirmed, with $10 costs and disbursements. All concur.