Bacharach v. American Union Realty Co. — 148 N.Y.S. 1104

Majority

p. 1104

BACHARACH v. AMERICAN UNION REALTY CO.

(No. 5986.)

(Supreme Court, Appellate Division, First Department.

June 19, 1914.)

Headnote

Appeal from Appellate Term, First Department. Action by .Sam Bacharach against the American Union Realty. Company. From a determination of the Appellate Term, affirming an order of the City Court denying plaintiff’s motion for judgment on the pleadings, plaintiff appeals. Modified and affirmed.

Gustav Lange, Jr., of New York City, for appellant.

Henry G. Wiley, of New York City, for respondent.

The notice of motion given by the plaintiff was for judgment on the pleadings. No motion was made by the defendant for judgment in his favor. We think the Special Term of the City Court correctly. denied the plaintiff’s motion for judgment on the pleadings; but, no motion having been made to sustain the demurrer, the order Should have been confined to a simple denial of the plaintiff’s motion, with $10 costs to the defendant. See Ventriniglia v. Eichner, 138 App. Div. 274 , 122 N. Y. Supp. 966 ; Duff v. Queensbro Heights Land Corporation, 156 App. Div. 913 , 141 N. Y. Supp. 1117 . The determination appealed from, and the order of the City Court, are therefore modified as indicated, and, as so modified, affirmed, with $10 costs and disbursements of this appeal.