Childs v. Childs

144 A.D. 167, 128 N.Y.S. 781, 1911 N.Y. App. Div. LEXIS 1651

Opinion

Scott, J.:

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 of the Code of Civil Procedure clearly contemplates tljat a. motion under it shall be made only when the cause is at issue, and it would have been a simple to have served an answer or demurred bis motion. The order appealed from ten dollars costs and disbursements. matter for defendant and then have made must be affirmed, with

Ingraham,- P. J., McLaughlin, Miller and Dowling, JJ.,. concurred. j

Order affirmed, with] ten dollars costs and disbursements.