Andrews v. Lebis

Appellate Division of the Supreme Court of New York

Andrews v. Lebis

281 A.D. 847, 119 N.Y.S.2d 93, 1953 N.Y. App. Div. LEXIS 3518

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 24, 1953

StatusPublished

This text of 281 A.D. 847 (Andrews v. Lebis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Andrews v. Lebis, 281 A.D. 847, 119 N.Y.S.2d 93, 1953 N.Y. App. Div. LEXIS 3518 (N.Y. Ct. App. 1953).

Pincite

Opinion

On a prior appeal this court reversed an order insofar as it denied respondents’ motion to dismiss for insufficiency the only causes of action contained in a complaint against them, and granted the motion. (279 App. Div. 1013.) On respondents’ application, Special Term, by order, dated August 1, 1952, granted a severance of the action against respondents, directed judgment dismissing the complaint on the merits as against them, and granted their motion to retax costs. Plaintiff appeals from this order, as well as from an order, dated September 23, 1952, denying his motion to vacate the order of August 1, 1952, and from the judgment entered thereon on October 6, 1952. Order, dated August 1, 1952, modified on the law by striking from the second ordering paragraph the words “on the merits”. Order, dated September 23, 1952, modified on the law, by striking out the word “ denied ” and substituting therefor the words “ granted to the extent of striking from the second ordering paragraph of the order of August 1, 1952, the words ‘on the merits’ and otherwise denied”. Judgment, entered October 6, 1952, modified on the law by striking from the second decretal paragraph the words “ on the merits ”. As so modified, the orders and judgment are unanimously affirmed, with one bill of $10 costs and disbursements to appellant. The dismissal of the causes of action against respondents on the prior appeal was for defects in pleading, it was not a final adjudication of any question of fact or law, and it was not on the merits, even though plaintiff was not granted leave to plead over. (Joannes Bros. Co. v. Lamborn, 237 R. Y. 207; Brick v. Cohn-H all-Marx Co., 283 R. Y. 99; Richard v. American Union Bank, 253 R. Y. 166; 2 Freeman on Judgments [5th ed.], §§ 745, 746, 747; Restatement, Judgments, § 50.) Present — Rolan, P. J., Carswell, Adel, MacCrate and Beldoek, JJ.

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On a prior appeal this court reversed an order insofar as it denied respondents’ motion to dismiss for insufficiency the only causes of action contained in a complaint against them, and granted the motion. (279 App. Div. 1013.) On respondents’ application, Special Term, by order, dated August 1, 1952, granted a severance of the action against respondents, directed judgment dismissing the complaint on the merits as against them, and granted their motion to retax costs. Plaintiff appeals from this order, as well as from an order, dated September 23, 1952, denying his motion to vacate the order of August 1, 1952, and from the judgment entered thereon on October 6, 1952. Order, dated August 1, 1952, modified on the law by striking from the second ordering paragraph the words “on the merits”. Order, dated September 23, 1952, modified on the law, by striking out the word “ denied ” and substituting therefor the words “ granted to the extent of striking from the second ordering paragraph of the order of August 1, 1952, the words ‘on the merits’ and otherwise denied”. Judgment, entered October 6, 1952, modified on the law by striking from the second decretal paragraph the words “ on the merits ”. As so modified, the orders and judgment are unanimously affirmed, with one bill of $10 costs and disbursements to appellant. The dismissal of the causes of action against respondents on the prior appeal was for defects in pleading, it was not a final adjudication of any question of fact or law, and it was not on the merits, even though plaintiff was not granted leave to plead over. (Joannes Bros. Co. v. Lamborn, 237 R. Y. 207; Brick v. Cohn-H all-Marx Co., 283 R. Y. 99; Richard v. American Union Bank, 253 R. Y. 166; 2 Freeman on Judgments [5th ed.], §§ 745, 746, 747; Restatement, Judgments, § 50.) Present — Rolan, P. J., Carswell, Adel, MacCrate and Beldoek, JJ.

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Bluebook (online)

281 A.D. 847, 119 N.Y.S.2d 93, 1953 N.Y. App. Div. LEXIS 3518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrews-v-lebis-nyappdiv-1953.