Mayr v. Apton

Appellate Division of the Supreme Court of New York

Mayr v. Apton

4 A.D.2d 885, 167 N.Y.S.2d 471, 1957 N.Y. App. Div. LEXIS 4203

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

DecidedOctober 28, 1957

StatusPublished

This text of 4 A.D.2d 885 (Mayr v. Apton) 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

Mayr v. Apton, 4 A.D.2d 885, 167 N.Y.S.2d 471, 1957 N.Y. App. Div. LEXIS 4203 (N.Y. Ct. App. 1957).

Pincite

Opinion

Appellant moved at Special Term to compel respondents to separate and number the causes of action sought to be stated in their complaint, pursuant io rule 90 of the Rules of Civil Practice, and for other relief against the pleading, pursuant to rules 102 and 103 of said rules. The motion was denied. On this appeal no argument is made that the order appealed from, insofar as it denies the motion for relief under the stated rules, should be reversed. Appellant contends that we should reverse the order, insofar as it fails to grant a motion to dismiss the complaint for insufficiency, and grant the motion, stating that a motion for that relief was made under his demand for other and different relief, without objection by respondent. Order affirmed, with $10 costs and disbursements. The difficulty with appellant’s position is that [886]*886the papers submitted in support of his motion do not disclose that application to dismiss the complaint for insufficiency was made at Special Term, and it is apparent from the order appealed from that no such motion was passed on. Furthermore, appellant’s notice of appeal is not sufficient to bring before this court for review the denial of such a motion. Nolan, P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.

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Appellant moved at Special Term to compel respondents to separate and number the causes of action sought to be stated in their complaint, pursuant io rule 90 of the Rules of Civil Practice, and for other relief against the pleading, pursuant to rules 102 and 103 of said rules. The motion was denied. On this appeal no argument is made that the order appealed from, insofar as it denies the motion for relief under the stated rules, should be reversed. Appellant contends that we should reverse the order, insofar as it fails to grant a motion to dismiss the complaint for insufficiency, and grant the motion, stating that a motion for that relief was made under his demand for other and different relief, without objection by respondent. Order affirmed, with $10 costs and disbursements. The difficulty with appellant’s position is that [886]*886the papers submitted in support of his motion do not disclose that application to dismiss the complaint for insufficiency was made at Special Term, and it is apparent from the order appealed from that no such motion was passed on. Furthermore, appellant’s notice of appeal is not sufficient to bring before this court for review the denial of such a motion. Nolan, P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.

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Bluebook (online)

4 A.D.2d 885, 167 N.Y.S.2d 471, 1957 N.Y. App. Div. LEXIS 4203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayr-v-apton-nyappdiv-1957.