James Livingston Construction Co. v. Redmond

150 N.Y.S. 1021

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 7, 1915
• Status: Published

Opinion

BIJUR, J.

Plaintiff sues for rent. It appears from the exceedingly brief minutes that at the opening of the trial the plaintiff moved for judgment on the pleadings. As the pleadings then stood, no issue was raised by the answer, and the motion should have been granted; but, following a colloquy, plaintiff “offered the pleadings in evidence” and rested, whereupon the defendant moved to dismiss. The court then granted plaintiff’s motion for judgment. Subsequently it set aside this judgment, saying that the minutes showed that the answer had been amended so as to deny the allegation of nonpayment of rent. As originally transcribed, the minutes do show a denial of this allegation; but as amended by the defendant’s attorney in longhand, and as settled by consent of the parties, they admit nonpayment of rent.

We assume that, at the time the judge below made the order appealed from, the minutes in their amended form were not before him; but, owing to the confusion in the record, we are unable to determine what reasons may have actuated the court in reaching this decision. Under the circumstances, we think that the interests of justice will be best subserved by affirming the order, without costs, and remitting the case for further proceedings upon the pleadings or otherwise, as the parties may be advised. All concur.