Newman v. Newman

Appellate Division of the Supreme Court of New York

Newman v. Newman

256 A.D. 605, 11 N.Y.S.2d 153, 1939 N.Y. App. Div. LEXIS 4792

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

DecidedApril 6, 1939

StatusPublished

This text of 256 A.D. 605 (Newman v. Newman) 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

Newman v. Newman, 256 A.D. 605, 11 N.Y.S.2d 153, 1939 N.Y. App. Div. LEXIS 4792 (N.Y. Ct. App. 1939).

Pincite

Opinion

Per Curiam.

The motion to dismiss the counterclaim under rule 113 was properly denied as the affidavits present triable issues of fact. The motion under rule 112 for judgment striking out the affirmative defenses was also properly denied. The sufficiency of these defenses can only be raised by a motion in the nature of a special demurrer under an appropriate rule. Such motion must be made within ten days after service of the answer. (See Rules Civ. Prac. rule 109.) The court, accordingly, has not passed on the sufficiency of the special defenses since the motion was not timely made.

The order should be affirmed, with twenty dollars costs and disbursements.

Present — Martin, P. J., O’Malley, Townley, Cohn and Callahan, JJ.

Order unanimously affirmed, with twenty dollars costs and disbursements.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

The motion to dismiss the counterclaim under rule 113 was properly denied as the affidavits present triable issues of fact. The motion under rule 112 for judgment striking out the affirmative defenses was also properly denied. The sufficiency of these defenses can only be raised by a motion in the nature of a special demurrer under an appropriate rule. Such motion must be made within ten days after service of the answer. (See Rules Civ. Prac. rule 109.) The court, accordingly, has not passed on the sufficiency of the special defenses since the motion was not timely made.

The order should be affirmed, with twenty dollars costs and disbursements.

Present — Martin, P. J., O’Malley, Townley, Cohn and Callahan, JJ.

Order unanimously affirmed, with twenty dollars costs and disbursements.

Cite This Page — Counsel Stack

Bluebook (online)

256 A.D. 605, 11 N.Y.S.2d 153, 1939 N.Y. App. Div. LEXIS 4792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newman-v-newman-nyappdiv-1939.