Fosmire v. . National Surety Company

New York Court of Appeals

Fosmire v. . National Surety Company

128 N.E. 130, 229 N.Y. 564, 1920 N.Y. LEXIS 768

New York Court of Appeals·Decided June 8, 1920·Published·Cited by 4 cases

Opinion

Per. Curiam.

The Special Term properly denied the plaintiff’s motion for judgment on the pleadings, but, in the absence of a counter-motion by the defendant, it erred in going farther and dismissing the complaint.

The remittitur should, therefore, be amended so as to provide that the order of the Appellate Division be reversed and that of the Special Term modified by striking out the direction for judgment of dismissal, and as modified affirmed, without costs to either party, and the question certified answered in the negative.

Except as aforesaid, the plaintiff’s motions for an amendment of the remittitur, for leave to serve an amended complaint, and for a re-argument, are denied.

All concur.

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Per. Curiam.

The Special Term properly denied the plaintiff’s motion for judgment on the pleadings, but, in the absence of a counter-motion by the defendant, it erred in going farther and dismissing the complaint.

The remittitur should, therefore, be amended so as to provide that the order of the Appellate Division be reversed and that of the Special Term modified by striking out the direction for judgment of dismissal, and as modified affirmed, without costs to either party, and the question certified answered in the negative.

Except as aforesaid, the plaintiff’s motions for an amendment of the remittitur, for leave to serve an amended complaint, and for a re-argument, are denied.

All concur.

Fosmire v. . National Surety Company, 128 N.E. 130, 229 N.Y. 564, 1920 N.Y. LEXIS 768 (N.Y. 1920).

Pincite

128 N.E. 130 (Fosmire v. . National Surety Company) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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