Jamaica Water Supply Co. v. Hill

157 A.D. 894, 142 N.Y.S. 1124

Opinion

—Upon the merits, plaintiff is entitled to judgment. There seems to he an irregularity in the practice. Defendant moved for judgment on the pleadings, and that motion was denied. Plaintiff does not appear to have made any cross motion for affirmative relief. The order at Special Term should have been limited to a denial of defendant’s motion. (Ventriniglia v. Eichner, 138 App. Div. 274; Schwartz v. Williams, 153 id. 302.) The order of affirmance in this court should also have been limited to affirming the order denying the motion for judgment on the pleadings. It would follow that the final judgment in favor of the plaintiff, and also the interlocutory judgment, must be reversed, with costs of this appeal to the appellant, unless the parties shall stipulate to the effect that a motion by plaintiff for judgment on the demurrer was regularly brought on and heard before the entry of the interlocutory judgment herein, and shall make such stipulation a part of the record in this ease. Jenks, P. J., Burr, Carr, Rich and Putnam, JJ., concurred.