Hyperlawhypertext legal database Funk & Wagnalls Co. v. Miller 146 N.Y.S. 187

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Funk & Wagnalls Co. v. Miller

146 N.Y.S. 187 Court Argued February term, 1914, before SEABURY, GUY, and DE-LANY, JJ. Decision date 1914-03-05 English

Delivered by *188 GUY, J.

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p. 187
FUNK & WAGNALLS CO. v. MILLER.
(Supreme Court, Appellate Term, First Department.
March 5, 1914.)

Headnote

Courts (§ 189[1] )—Municipal Courts—Pleading—Necessity for Answer or Demurrer.
Under Municipal Court Act (Laws 1902, c. 580) § 145, there being a verified complaint in an action for more than $50, a written answer or demurrer is necessary to raise an issue, so that there being such complaint and no answer or demurrer, plaintiff making a prima facie case, there can be no judgment on the merits for defendant.
[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by the Funk & Wagnalls Company against Henry Miller. From a judgment for defendant after a trial by the court, plaintiff appeals.
Reversed and rendered.
Argued February term, 1914, before SEABURY, GUY, and DE-LANY, JJ.
Loeb, Bernstein & Ash, of New York City, for appellant.

This action was brought to foreclose a lien on chattels sold under a contract of conditional sale. There was a verified complaint, but no answer or demurrer was filed.

Plaintiff proved a prima facie case, and asked for judgment for the foreclosure of its lien of $72.08, including interest; the court then undertook to settle the-matter by advising the gradual payment by defendant of the amount called for by the contract of conditional sale; thereafter a dispute arose as to which the details are lacking. The court terminated the dispute by rendering judgment for defendant on the merits, thereby in legal effect vesting the legal title to the chattels in defendant. Clark v. Scovill, 198 N. Y. 279 , 284-286, 91 N. E. 800 . On the proceedings and evidence as returned, no defense was either pleaded or proven.

Under the present Municipal Court Act (Laws 1902, c. 580, § 145), where there is a verified complaint in an action for more than $50, a written answer or demurrer is required to raise an issue.

Judgment reversed, with costs, and judgment of foreclosure granted, with costs. All concur.

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